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My Book’s Been Orphaned–Now What?

4 March 2016

From The Evil League of Evil Writers:

The news that a major small publisher was closing hit everyone by surprise some days ago. This publisher (I’m not naming names because this post isn’t about them but more general than that) took a very honest, classy approach, continuing to release books that were ready and selling stock still while they begin to wind down. By comparison, many other places abruptly close and revert all rights at once; some have even been known to disappear altogether, leaving writers in the lurch (and rarely paying staff).

This is, unfortunately, a thing that happens a lot. I was first signed a dozen years ago with a small publisher, and my good friend (whose books I inherited recently) was with multiple small publishers years before that, so I’ve seen this many, many times. Publishers closing has been a part of e-publishing for a very long time and many authors at some point find their books orphaned.

. . . .

What are Reversion of Rights letters?

This is a crucial and necessary document to obtain when your publisher closes.

You had a contract with this publisher, giving them the rights to publish your books. Even though you retain copyright, if you’ve given exclusive print rights to someone, you can’t then go and republish unless you have proof.

If you plan to query other publishers with your orphan books (more below), you absolutely need this letter. If you plan to self-publish, you need it as well; Amazon (KDP and Createspace) will block your books when you self-publish if they find it’s been published before and will require you to give them proof you have the print rights.

A RoR letter will contain language to the effect of “Please consider this the official cancellation of your publication contract” and will include the name of the book, the name of the publisher, and the date. It should also grant the publisher a certain amount of time in which to comply with the cancellation (thirty to ninety days) and remove your book from print.

. . . .

Do I retain the rights to my cover art?

Unless you provided the art–either because you hired the artist or were the artist–no, you don’t get the rights to the cover. Depending on the artist contracts, you might be able to re-purchase the cover from them if the design reverts back to them. If the publisher provided the stock photos, even if you’re the artist, you will need to re-purchase that stock so you have a license to use it.

Link to the rest at The Evil League of Evil Writers and thanks to Ashe for the tip.

One way of handling this from a contractual perspective is to have a Change of Control provision in your publishing agreements. These provisions are close to being boilerplate for standard business contracts in the reality-based world, but rarely found in publishing contracts.

Here’s what a change of control clause looks like. This particular one is in two parts – a definition and a clause that says what happens if a change of control takes place.

“Change of Control” means the sale of all or substantially all the assets of a Party; any merger, consolidation or acquisition of a Party with, by or into another corporation, entity or person; or any change in the ownership of more than fifty percent (50%) of the voting capital stock of a Party in one or more transactions.

In the event of a Change of Control of any party to this Agreement, the other party may terminate this Agreement upon thirty (30) days written notice.

PG was thinking the other day that traditionally-published authors might benefit from a Change of Editor clause. The unfortunate experience of many authors is, if the editor who acquired the book leaves the publisher, the book effectively becomes orphaned within the publisher.

Yes, another editor is assigned to the book, but the new editor already has her own projects and her own acquisitions to deal with and hasn’t suddenly gained another 24 hours in each of her days. Unfortunately, the new editor has a tendency to ignore most or all of the books of the departing editor.

Here’s a Change of Editor clause that might help an orphaned author out.

In the event that Eartha Editor is, for any reason, no longer a full-time employee of Publisher assigned to oversee Author’s books and, if Author does not execute a written consent to the appointment of a replacement editor, Author may terminate this Agreement upon thirty (30) days written notice to the Publisher.

Yes, the publisher does not have absolute control over whether an editor continues to be an employee, but neither does the author have control over a wide range of events for which standard publishing contracts impose penalties. (See, for example, Warranties and Indemnities here, here and here)

If the author likes the new editor and is assured that the new editor will take good care of the author’s books, a signature on a one-sentence consent form is quick and simple.

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Contracts, Legal Stuff

4 Comments to “My Book’s Been Orphaned–Now What?”

  1. Reality Observer

    PG, consider adding these people to your blogroll. (Unless I am blind this AM, and am not just seeing them…)

  2. Hmm…I love the CoC idea, wondering if many authors would have sufficient clout to get a publisher to sign, would they? If all had it, it would be an instant Poison Pill.

    Obviously, if Company X has five really big names in their publishing roster, Company Y acquiring them would consider those “Assets” as part of the deal — i.e. they are buying the backlist (and at the point of sale, everything is backlist) of everyone big and small.

    However, if said writers and the rest could then say, “Sorry, I get everything back, you sold the company”, then the Company X would have no IP assets at all, and Company Y might have bought an empty shell. The proverbial poison pill of a unique form.

    I wonder though if they could use it as a bit of leverage to get a better Rights Reversion clause (combining time-limits, bankruptcies, and smaller than expected long tails i.e. low sales in a given timeframe).

    Equally though, I wonder if many publishers could stomach a change of editor clause. While it looks like you’re placating the author, you’re really putting a very large calibre gun in the hand of your editor and asking them to point it at your head during contract negotiations.

    Well, I brought you James Patterson and
    the next JK ROwling.

    Uh, huh, what have you done for me lately?

    Give me a 200% raise or I leave.

    Have a nice life.

    Wait, I have editor clauses in all their
    contracts…you spent all that money and
    if I leave, all their rights leave. (Insert
    sound of gun cocking)

    Oh, 200%, is that enough? I want to be fair.

    If I was the publisher, I wouldn’t sign either one unless I absolutely could guarantee it was a one time only compromise and I *really* needed that author’s book. Just too close to an “in perpetuity” clause that gives nothing to the publisher in return.

    Have any authors on here been able to get this regularly?

    Poly

    • Well, if the new company kept your editor then those rights would flow over too.

      And a few properly placed poison pills in the mix might slow down the qig5 buying up all the little shops just to have those writers locked in their pens.

      It always sounded strange to me that a writer’s ‘rights’ could be bought and sold with said writer having no say in the matter after signing on with the first publisher …

      Ah well, the more we see the inter-workings of the publishing world, the better self publishing looks.

  3. After a book has been published, what does the editor do?

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