Home » Big Publishing, Contracts » Reasoning with the Unreasonable?

Reasoning with the Unreasonable?

31 January 2015

From author Renee Bernard:

Recently, I’ve begun drafting my next semi-annual requests to my previous NY based publishers for the rights to revert back to me for dustier tomes that I would love to welcome back onto my shelves. It’s become a bit of a ritual and repeated rite of supplication and rejection for me.  For a lot of Indie authors, it’s just part of the landsacpe–a nearly hopeless quest to recover your creative offspring and reunite them with their newer siblings.

I ask.  They say, no.   It isn’t fun.

They say something about the book still being available for sale…and with the veils of secrecy that they’ve perfected over a century, it’s tough to argue that it is NOT “in print” if one box is rotting in a warehouse, or if they’ve jobbed out copies for pennies on the dollar and it’s clear they aren’t making any print runs anytime soon (aka never).  Prove it.  Even if I buy the few remaining copies at a fire sale, they refuse to let go.  They use the same electronic copies that have become the stuff of dreams against you because those books never go out of print, right? Sorry.

As NY publishing continues to stumble in the dark, the fallback position is to hold onto everything they have, either for fear of losing the tiniest revenue stream from past books or out of the hope that one of those long-neglected and dropped authors will become quite the lottery win if the writer goes on to do great things outside of their hold.  For them, they think retaining every scrap of rights is a win-win.

. . . .

If an author has stepped away from traditional publishing, they probably had reasons.  By refusing to play nice and yield publication rights when it is reasonable to do so–you step firmly into the role of greedy villain.  Which while probably an awesome thing to be in a captitalist profit-driven scenario in a Hollywood film, won’t sustain an industry in the real world for long.  As talent flees in droves and the publishing world changes, what hope do they have of luring back any of those Big Fish if things do take a turn for the better?

What author would look back and say, “Yes! Oh, please! You’ve been so reasonable and pleasant to deal with!  Where do I sign?”

They lock the door on any future contracts with incredible writers because let’s face it, those creative types tend to remember every bruise and insult.  The business model becomes dependent on new, naive, uninformed talent to sign on the dotted line… And we all know how that’s going!  Because writers are talking to each other!  We communicate.  We share stories of our experiences, numbers, names, details.  That’s right–it’s quite the forum out there!  In other words, I believe that the pool of talent they say is shrinking is in fact the pool of willing newbies they can attract with the diminishing prestige of hardcovers and shiny marketing.

Link to the rest at Renee Bernard

Here’s a link to Renee Bernard’s books

Big Publishing, Contracts

44 Comments to “Reasoning with the Unreasonable?”

  1. As a writer who’s also teaching (screenwriting) at a British university, I’m seeing this even in the new students who are coming through. They’re already self-publishing, or thinking about it, or accepting it as how they will get their work out there.

    It’s the older writers we encounter on our Masters programmes who aren’t quite as sold on it. But more and more of them every year are talking about self-publishing.

    That’s the ‘shrinking pool of talent’ right there.

  2. There is more talent than tradition publishing has the ability to physically deal with.

    • Actually, they could if they wanted to. Any big publisher could set up the equivalent of a Smashwords, allowing anyone to self-pubish their book with them and take a 10% cut as the aggregator. Their carrot would be a prestigious name Randon House, etc., and they could also offer incentives in terms of promotion and print distribution. Any title that reached 10,000 digital sales would automatically be granted a limited print run. If it does well, they would expand. Titles that reached certain goals would get additional bonuses like mainstream press and attention. A small number of editors could monitor sales and look for promising writers to make long term deals with.

      It’s all very doable. But big publishing doesn’t want a meritocracy. That’s their biggest problem. They want to be curators and taste makers. They want to decide what people read.

      The backlists are what finance this non-business like behavior. As D.L. Shutter points out, all these tiny revenue steams add up. By various estimates, over half of big publishing’s profits come from backlist titles. That props up bad decision making in terms of what new books to buy and also the cash to promote literary darlings. The biggest problem for them now is that self-publishing is taking all the attention away from their favored writers. And they are very likely to lose the best and brightest of the new generation.

      • They want to be curators and taste makers. They want to decide what people read.

        And they aren’t half fond of taking hopeful writers’ money up front with “self-publishing” services scams, either.

      • I thought they were already doing this with things like Authors Solutions.

        • Author Solutions doesn’t give you access to RHP distribution, or any distribution at all, in practical terms. So far as I have been able to discover, the print side of the AS business is a pure scam, and the ebook side requires authors to pay thousands of dollars for services that every reputable retailer and aggregator provides for free.

      • I’m not quite against a certain kind of curation. I’m against their pretense of exclusivity, their trying to close the doors.

        I could point to you specialized houses whose books are “Bibles” in their field. You can probably provide your own. That kind of “curating” is doable, “legit”, and carries a premium.

        That “Charlie and the Chocolate Factory” cover some months ago? Snooki?

        Curation? They keep using that word, but… Princess Bride.

        Take care.

  3. “As NY publishing continues to stumble in the dark, the fallback position is to hold onto everything they have, either for fear of losing the tiniest revenue stream.”

    I think the problem with rights reversion is that they’re not stumbling around in the dark. Or, not so much as before, when it comes to digital backlist. That “tiny” revenue stream a Tradpub gets from your past titles is just one of thousands (or tens of thousands) of tiny streams they’re making cumulative bank on. The fact that you could get an old title back and then lovingly promote and boost its visibility to a higher royalty earning for yourself is lost on them. Nope. They like their tiny revenue stream right where it is. And if that means you’re STILL not earning out on that advance they gave you in the 90’s, oh well. Not their problem.

    I hope this writer is able to somehow get their rights back though. Its sad to hear these stories considering how much opportunity there is now for backlist titles.

    • This. A small revenue stream is better than none at all. Also, those backlist books are assets of the company. If they released all of them, the book value [cough] of the company would go down, and the CEO would have to answer to the stockholders for it. Not going to happen.

      [ETA: Sorry, just read down the rest of the comments. Carry on. 😛 ]

      Angie

  4. It must be scary for them, once they were able to reject literal tons of manuscripts for the fault that they were delivered on the ‘wrong’ days to now having to actually read every one that comes in in the hope that it’s worth trying to get the author to sign a bad contract. They’re finding their tollgate doesn’t do as much business now that the fences to each side have rusted away …

  5. “those creative types tend to remember every bruise and insult.”
    Very true!

  6. “…writers are talking to each other! We communicate. We share stories of our experiences, numbers, names, details. That’s right–it’s quite the forum out there!”

    I think publishers have very little idea about how much discussion goes on behind the scenes between established authors and how none of it paints them in a favorable light. For every author who is vocal in public there are thousands who share the same antipathy to legacy publishing.

    • Well, they’d have to have a mastery of the internet in order to understand that. They’ve proven they don’t get the digital age.

    • “I think publishers have very little idea about how much discussion goes on behind the scenes between established authors and how none of it paints them in a favorable light.”

      Personally, I think they have the idea, but they don’t realize the current importance. I recall certain things in F&SF Cons in the 90s. If I heard that from across the pond and across language barriers, they must have read it.

      They just shelved it away, like trivia. After all, it wasn’t like writers could do anything else, was it?

      Until they could.

      Take care.

  7. IMHO, this author needs to get a vicious, nasty, take-no-prisioners IP lawyer and have him/her start writing certified-mail letters demanding reversion or face the consequences. Time to get serious!

    Without some sort of audit — or lawsuit threat with discovery — it’s impossible to know if the backlist titles are actually “out-of-print” or if the publisher is just averring they aren’t.

    • +1

      This lawyer totally agrees. Make them prove they’re operating within the four corners of the contract and prove they’re “in print” (which is probably arguable in any case).

      A good creative lawyer ought to be able to file an action in these cases based on a business tort claim as well as contract breach and demand a jury trial. Cases so filed will usually bring gamesmanship to a screeching halt if that’s what’s going on.

      Go for it.

      • Of course, that would mean that the author’s career in trad publishing would also come to a screeching halt. There is, as we are constantly told, no blacklist in publishing; yet somehow this blacklist that does not exist is more ferociously effective at killing careers than blacklists that unquestionably do exist. Buck the system, and you’ll never get work in Manhattan again.

      • As a lawyer, I’m sure this looks like an awesome option. A writer who’d be the one spending the money on the lawyer, and on the accountant doing the audit, would probably see it differently. What’s right and what’s feasible aren’t always the same thing.

        Angie

      • This, John. Why do publishers not have to prove the book is in print? As in, say, locating a print copy and sending it to the author? Instead we’re supposed to take it on faith, a poor basis for any legal/business relationship.

  8. If I’ve followed the gist of the “glut of books” argument correctly, there’s another reason for traditional publishers to discourage rights reversion. Each book they release becomes another in the competition.

    Plus, are back list items considered assets for accounting purposes? If enough authors reclaimed such assets, how would it affect the publishers’ financials?

  9. Actually, the big problem is that authors are expecting the rights back for free. What corporation do you know that will give you a major or minor piece of property for free? Uhh… none.

    But a simple offer of a reasonable amount of cash for the rights back tends to shift all discussion. If your last four royalty reports show the book only earning a few hundred bucks, offer than a thousand to buy it back.

    That’s how many of us get rights back. We understand who we are dealing with and act in a business manner. Deal with corporations, flash a profit motive to let the book go. Asking for something for free just won’t do it in these modern times.

    • excellent and true. I’ve paid already, somewhat through the nose, lol to ransom a valuable ms on a contract I broke with a big 5 [and had to or else have not a shred of self-respect left]. I borrowed the money to repay them a signif part of their bloodlibel advance.

      And am about to pay again for reversion of rights on another book that we likely will offer to buy up remaining stock [about 600 books out of original run of 150k, still left, and oddly not carried for years in book stores, and we sell the majority of them ourselves at events. Go figure. “No we cant revert right because there are about 100 sales a year, so no OP.” Right, those 100 sales are hand sold by me. lol It is truly crazy making sometimes with big 5.

      On a third book, we asked re reversion [also a big 5] and, they offered that we buy at $1 @ book of those in stock, [several hundred] and free shipping to us if we gave the books away through our nonprofit. We agreed and did it and as a result the rights reverted to us.

      Thankfully we have our rights to all other books, except one… that was via now defunct book of the month club that we have to ask an IP lawyer about.

      So DWS is right, make offers to pay, but the way you pay can take many avenues… try if you can, to make it easy on yourself. If you believe you have a a high value ms, and some people at the publisher are upset that you broke a contract, for instance, let it sit for a while. Inevitably, either those annoyed will be fired or move up and get their strokes other ways.

      We asked, practically begged for years, finally changed tactics about who to contact, [went straight to the top instead of the persons in charge of reversion for instance,] [then went straight to the top lawyer in the pub co] and etc.

      I hope everyone can get their rights back. Dont give up, we were locked in horned battle for nearly 7 years to get one of our books back. And in the one were about to pay for, it took years mainly because we kept asking ducks who peck around on the ground, instead of eagles who can see far. lol

  10. The big publishers are owned by far bigger conglomerates. The book rights are assets. The conglomerates value those assets. They have potential to deliver a cash flow for years to come.

    They have no reason to give up those rights. If they give up the rights, they get nothing in return. If they keep them, they have a portfolio of rights that can be managed by a small staff as if they were a stock portfolio.

    That long tail works for everyone. The more rights a firm has, the better it works for them.

    DWS is right. These rights have a present value. In financial terms, they are negotiable assets with a value. If they can get cash today that exceeds the PV of their projected future earnings, it is reasonable for them to sell the rights back to the author.

    If not, I expect the publishers to use asset management programs similar to those used in securities trading. I wouldn’t be surprised to see some bank set up a program to do it for the publishers. They don’t have to know anything about books.

  11. And we all know how that’s going! Because writers are talking to each other! We communicate. We share stories of our experiences, numbers, names, details.

    Some of us do. Not all of us.

    It’s easy to think that since we see writers all over the internet posting, commenting, arguing, ranting, kerfuffling and snarking, that “Writers” are all active online and connected and aware of what’s going on. Not so. What we see isn’t all that’s out there.

    There are plenty of writers who aren’t active online, who don’t hang out on writing or publishing blogs or forums, who are pretty much cut off, by their own choice. Writers who read some books and some articles, occasionally Google some specific thing they want to know, and then move on. There are bajillions [<– official statistic] of writers, and only a small fraction of them are active online on a regular basis, participating in a community of others interested in writing. I know this because it's true of just about every large interest group.

    Heck, I used to work for an online gaming company. You'd think that if any group would have 100% saturation in hanging out online with others like them, it'd be online gamers, right? They're already online FOR their activity. In fact, only a small fraction of our players hung out on the bulletin boards, or were even vaguely aware of announcements we made or what was going on. I took I-don't-know-how-many assists to answer questions or dispel misconceptions that would've never come up if those players were paying attention to what was going on with the game, online but outside of said game. I talked to many, many people who said that they never read the boards. Most people just don't. And the fact that we here all DO makes it that much harder to remember that.

    There's also a strong streak of pro-indie, anti-tradpub here on PV. We need to factor that in too, before we start waving the Everyone Agrees With Us! banner. A couple of dissenting voices among the regulars here just reinforces the gut-level belief that most writers agree that taking your book trad is stupid, when that's not actually the case.

    From the publishers' point of view, there's absolutely no shortage of writers clamoring to hand over their books. We keep saying, "They're gonna lose all the good writers!" but that's just not true. Maybe in a generation or so, but now? Not even close. It's like, say a publisher puts out 500 novels per year. If they have 20,000 submitted every year, they're rolling in choice. What if a lot of writers "get smart" and turn their backs on tradpub? Oh, no! Now they only have 10,000 novels to choose from! :/ I'm guessing they can probably still find 500 books to publish without much hassle.

    I keep seeing conversations about how tradpub is going to be hurting for writers. Maybe they will some day, but I don't expect it to happen in my lifetime. And it's certainly not going to get bad enough to make them change their ways any time in the next decade or so. They might make changes for other reasons, but "OMG we don't have any decent submissions to look at!" isn't going to be one of those reasons.

    Angie

    • Agree, sort of.

      Publishers are not going to hurt for writers… Then, neither am I, as a reader. Even if I forego those publishers.

      While they will have writers, the fact that there are OTHER writers “outside” is going to take them something else: readers. The ones who happen to pay the bills.

      Probably not, sure, the guy who buys a single 25$ hardcover a year. But some of it has already started and closing year statistics seem unable to realize it.

      The bubble effect you mentioned affects indie, sure. It affects everyone, after all. Including publishers.

      IF I’m reading things right, the push to end the Amazon-Hachette negotiations came from the mother corporation. I’d call that a case of the rider removing the blinders.

      Take care.

    • It’s like, say a publisher puts out 500 novels per year. If they have 20,000 submitted every year, they’re rolling in choice. What if a lot of writers “get smart” and turn their backs on tradpub? Oh, no! Now they only have 10,000 novels to choose from! :/ I’m guessing they can probably still find 500 books to publish without much hassle.

      Formerly, your hypothetical publisher picked (what they believed to be) the 500 best submissions out of the 20,000. Very well: call those the first-rate manuscripts. They get to publish 500 first-rate books. (Actually, the number of genuinely first-rate books on their list is more likely to be 10 or 20, but let that pass; it doesn’t matter for our present purpose.)

      Now half of those writers stop submitting and go indie. The publisher must choose 250 second-rate manuscripts to make up its numbers. Now they are publishing 250 first-rate books and 250 second-rate books; and naturally they will sell fewer of the second-rate ones. Worse yet, the other 250 first-rate books, which in the old days they would have published, are out in the wild, competing with their products. That reduces their sales even further.

      It may be that some publishing people are very happy that they have fewer submissions to read. They should instead be worried that they have fewer good submissions to choose from. A new generation is quickly growing up, composed of writers who would never even think of submitting to an old-style publisher and waiting months or years for an almost certain rejection. The best of those writers are just as likely to self-publish as the worst.

      • I’m betting that there are plenty of first-rate (according to the publishers’ standards, whatever those may be — that’s a different discussion) manuscripts being submitted, even if we remove half the submissions. By my hypothetical numbers, they’re still getting 20 submissions for every slot in their publishing lines. (And frankly, I think I was being way conservative.) We all know how many great books got/get rejected by tradpub every year. Sure, a lot of that was the editors (or the marketers, the publicity people, the beancounters) exercising their advanced case of tunnelvision when trying to figure out what’ll sell. But a lot of that had to have been, “Sorry, our schedule is full for the next couple of years.” Especially if you start breaking it down by genre and subgenre, where there are going to be much smaller numbers of allocated slots.

        A new generation is quickly growing up, composed of writers who would never even think of submitting to an old-style publisher and waiting months or years for an almost certain rejection. The best of those writers are just as likely to self-publish as the worst.

        I don’t know how quickly they’re growing up, actually. Again, the people we hear from online, or at conferences and conventions, are the writers who are active in the writing community, whether online or in realspace. That’s a small fraction of the total. And people who are connected to a lot of other writers, who are active in writing communities online, are more likely to be exposed to the yay-indie! ideas that feel so normal to us here. People who are working away on their own, getting advice from their English teacher or professor, or a local bookseller they’ve made friends with, is much less likely to be exposed to the indie POV. Or if they are exposed to it, it’s likely to be in a negative way, explained by someone who’s scoffing and snarking about it.

        There are still a LOT of people who use the internet only to send e-mail, play Farmville (or whatever the popular online time waster is these days) and maybe do some online shopping. And that’s it. That’s what the majority of the people in the US, and probably in the industrialized world, look like. They don’t hang out online, don’t talk to people online, don’t read blogs or forums, and are only vaguely aware of this “indie publishing” thing. Maybe they read about it in the New York Times. :/

        I might be wrong, but I’d bet a large stack of cookies that the BPHs aren’t going to feel a lack of good manuscript submissions any time soon.

        Angie

        • I’m betting that there are plenty of first-rate (according to the publishers’ standards, whatever those may be — that’s a different discussion) manuscripts being submitted, even if we remove half the submissions.

          Given that publishers were already losing money on the majority of books they published (a figure, by the way, that has nothing whatever to do with whether advances are earned out), you would be liable to lose that bet.

          Remember, we are taking away half of the profitable books from their submission pile, and expecting them to make up that profit with books that they would have rejected as insufficiently commercial. There may be a few surprise sellers in the latter group, but not enough to make up for the loss of half their sales from the former group.

          The only reason this hasn’t happened so far is that the decline in new talent to exploit has been masked by the higher unit profits from ebooks and the publishers’ ruthless exploitation of those writers already bound to them by contract.

          As for your stack of cookies, I suggest you page back through some of the posts on TPV in recent months. Agents are the bellwether of the submission system: if agents are getting fewer submissions, so are publishers. Agents who used to be downright rude to new authors, and in public too, and complain-bragged about how swamped they were and how few new clients they could afford to take on, are now asking for submissions and doing it politely. That shows that their surplus has dried up and they are now actually having to work to find clients.

          If the agents are suffering, so are the publishers, pari passu; or rather, they would be if they were not tapping ebooks and backlists to replace their lost profits. But the publishers can only do that once. There isn’t another medium that will reduce their printing and production costs the way ebooks did, because you can’t reduce those costs below zero. And once they are exploiting a given backlist book, they can’t magically double-exploit it to increase their income further.

          I’m not talking about hypotheticals here. I’m talking about what people in the industry (not the Shatzkins and Streitfelds who play the role of Baghdad Bob for them) have told me, or have told writers that I know to be trustworthy.

          • Okay, looks like we need to have that conversation after all. 🙂

            As you said yourself, the big publishers are already losing money on a majority of the books they publish. And I said, “first rate (according to the publishers’ standards.” We know the publishers are getting (or their contractors the agents are getting) many, many manuscripts that go on to do very well as indie books, after being rejected by the BPHs. And every BPH rejects manuscripts that are later bought by a different BPH, and go on to do well. So the situation doesn’t seem to be one where there’s a lack of good manuscripts, either in an absolute sense of being books the readers want to read, or from the POV of the BPHs, since most (all?) of them do get some percentage of their acquisitions from the pool of manuscripts previously rejected by one of the competitors.

            Under my hypothetical scenario, my BPH only needs to find 500 manuscripts per year that they think are worth publishing. If they’re still getting 10,000 submissions, I doubt they’d have much trouble doing that. Whether they’re correct about the profitability of every book is another issue — they’re not always correct about that now, with 20,000 submissions per year. But that’s not the problem we’re discussing.

            Bottom line, we’re all guestimating figures here, and me most of all. But my bottom line is that there are many, many writers out there who still want to be published by Random Penguin or one of their large competitors, and I don’t see that changing significantly for a long time. And that it’s going to take a lot of change in that area before the BPHs start feeling a significant pinch in their slushpile.

            I can’t prove I’m right, and you can’t prove I’m wrong, so at this point I suppose we can just shake hands and disagree.

            Angie

  12. If my books were hung up in this way I’d simply rewrite them so there’s a 10%+ difference & re-publish em. You can’t be prosecuted for plagiarising yourself – would b different if he had signed one of those contracts signing over his milieu though.

    • You can’t be prosecuted for plagiarising yourself

      You most certainly can. It has happened before. Cf. Fantasy Records v. John Fogerty. (Short summary here.)

      Note that while Fogerty eventually won the court case, and even forced Fantasy to pay his litigation costs, in the meantime he ran up over $1 million in legal bills. Few writers have deep enough pockets to fight a lawsuit of that kind, even if the initial action is both groundless and frivolous.

    • This is what I was thinking too. Update your book, add some new scenes, change the character name spelling, and publish it anyway.

      Point out you never gave them digital ebook rights so you’re proceeding with digital.

  13. Folks should maybe consider this stuff before they sign the contract, particularly in an environment where you’ve got a 20% chance, at best, of earning out the advance. If you take the advance, this is part of that deal. Certainly, it’s not “fair” but it’s not unpredictable at all. The odds are stacked against you that you’ll ever see a dime above the advance and those rights aren’t coming back without an outlay of cash, either for a lawyer or some buyback offer, which further erodes the value of that advance. Low dollar advances are a bad deal for the writer the vast majority of the time. If you agree to one, there’s consequences that don’t just evaporate because you think some element of “fairness” should be in play. I sympathize with writers stuck in these situations but they’ve got to understand the publishers’ attitude isn’t the problem, however unethical or exploitative they may seem, their own signature is.

    • …those rights aren’t coming back without an outlay of cash, either for a lawyer or some buyback offer…

      Not necessarily. There’s no one method that gets it done. I emailed my former agent and asked him to ask. There are a lot of ways it could have gone after that, but how it did go was that they sent back a letter reverting my rights to publish the books, but insisted on retaining subsidiary rights…film, TV, etc. I could have shelled out money to take it farther, but the odds are strongly against it ever being an issue.

  14. What does a publisher do when he has 2,000 submissions, and any one of them could easily fit into one of his 500 publishing slots?

    • Throw 1500 away.

      I mean, there have been leaks of publishing emails bragging about that.

      Take care.

    • It’s easy, really!
      First, did we get a memo that any of our ‘special snowflakes’ have sent anything in? If so, those slots are gone!
      Anything delivered on Mon/Fri/Sat is an automatic reject, so there’s a 50% or better cut!
      Now any ‘whiny’ writers (the kind that ask ‘any’ questions about anything) are dropped.
      Next, yell at the pre-screeners so they’ll be in a bad mood and reject anything that doesn’t make them forget their mad.
      In no time at all you can be down to your limit. Now, were these the best of the best? No way to know, but you might get ‘lucky’ …

      .

      The first myth of management is that it exists. The second myth of management is that success equals skill. — Robert Heller

      Never attribute to malice that which can be ascribed to ignorance or stupidity — A.C.Clark

  15. So let me see if I have a firm grasp of the reality portrayed here.

    In the event I ever got the “Golden Ticket” from a BPH, with a standard $5000 advance (less $750 for the agent fee), I would likely end up with a taxable $4250.

    Then it likely would not sell well since no one knows me and no one really wants to take the time to help me build a career.

    Time goes by and the book doesn’t make the $5000 advance and I see no sales. So I get twitchy, and ask the publishers for rights reversion.

    They of course say “no”.

    I say, “Pretty please.”

    Again I hear a “no”.

    Then even more time goes by. I get even more twitchy (from nights of restless sleep from the knowledge that my book could be doing better if I was in control), and offer them $1000.

    They finally say “yes”. Hooray, I got my rights back.

    So $5000-$750-$1000 = $3250 and a lot of wasted time?

    Uh, no thanks.

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