From Writer Beware:
This is an update of a post I wrote some years ago. Since I’ve been getting a lot of questions lately from writers wondering how to request contract termination and rights reversion, I thought it would be useful to take another look.
There’s no “right” or “official” procedure for a rights reversion request. If you do a websearch on “rights reversion request” you can find various pieces of advice from authors and others. That said, here are some common-sense suggestions for how to go about this (Obligatory disclaimer: I’m not a lawyer, so what follows is not legal advice.)
First of all, if you have a competent agent, discuss the situation with your agent and ask them to approach the publisher on your behalf. Especially if you’re with a larger publisher, your agent is more likely to know whom to contact, and in a better position to push for a response.
The advice below is primarily aimed at authors who don’t have agents, and/or who are with smaller publishers.
1. Look through your contract to find the clause or clauses dealing with termination and rights reversion. Typically this will be a separate clause, but some contracts bury termination/reversion language in other and even unrelated clauses.
Hopefully there will be stipulations for when and how you can request your rights back–for example, a book may become eligible for rights reversion once sales numbers or royalty income fall below a stated minimum.
The ideal reversion language is precise (“Fewer than 100 copies sold in the previous 12 consecutive months” or “Fewer than 50 copies sold in each of two consecutive royalty periods”) and makes reversion automatic on the author’s request, as long as those benchmarks are met. (For more on why reversion language needs to be precise–including examples–see my post on The Importance of Reversion Clauses in Book Contracts.)
Unfortunately, reversion language is often far from ideal. Your contract may impose a blackout period (you can’t request reversion until X amount of time after your pub date), a waiting period after the reversion request (the publisher has X number of months to comply, during which time your book remains on sale), or provide the publisher with an escape mechanism (it may only allow you to request reversion, leaving the publisher the latitude to refuse, or may make your request moot if the publisher issues or licenses a new edition within 6 months of your request).
Worse, your contract may not include objective standards for termination, leaving the decision entirely to the publisher’s discretion; or it may include antiquated standards, such as this: “The book shall not be considered out of print as long as it is available for sale through the regular channels of the book trade”. Such language was meaningful in the days when books existed only in print, and print runs could be exhausted, but it’s useless for today’s digital reality.
It’s also possible that your contract may not include any reversion language at all. This is often the case with limited-term contracts, so if your contract is one of those, you may just have to wait things out. Unfortunately, I’ve also seen life-of-copyright contracts with no reversion clause. This is a big red flag: a life-of copyright contract should always be balanced with precise reversion language.
. . . .
6. DO: be polite, businesslike, and succinct.
7. DON’T: mention the problems the publisher may be having, the problems you’ve had with the publisher, problems other authors have had, online chatter, news coverage, lawsuits, or anything else that could be construed as negative.
As much as you may be tempted to vent your anger, resentment, or righteous indignation, rubbing the publisher’s nose in its own mistakes and failures will alienate it, and could cause it to decide to penalize you by refusing your request, or just refusing to respond. This is a real risk: I can’t count the number of stories I’ve heard over the years about vindictive publishers who decided to punish authors they deemed troublemakers by holding a death-grip on the authors’ rights.
Again: keep it professional, businesslike, and unemotional.
Link to the rest at Writer Beware
PG notes that it is not uncommon for publishers large and small to do all sorts of things with an author’s books that aren’t mentioned in the contract. Look for those as well.
While PG doesn’t do that sort of work any more, on more than one occasion he found errors and omissions in publishing contracts, including from the largest of publishers, which would get a first-year lawyer fired from any reputable law firm if she/he had made a similar error.
The type of people who do well in law school don’t have the slightest desire to go to work for a big publisher because the pay is terrible and management doesn’t like lawyers very much anyway. A publisher won’t hire a law firm with serious attorneys until the publisher gets itself into serious trouble because they didn’t hire a good lawyer in the first place.
I think mine was pretty simple and straightforward. I was on good terms with the publisher in question (probably one of the few who were in hindsight), was nearing the end of the contract, so I was able politely request and have accepted with no pushback, the rights to my one novel. Subsequently, I was able to do some very light editing and with a title change, self-pubbed it through Amazon and Smashwords.
I’ve never thought of it this way, PG, but good grief this just makes so much sense.
I guess it’s possible that some lawyers like books, just like some book lovers go work in libraries and book stores – but that has to be a minority. They’d have a hard time just paying back their loans if they worked in the publishing industry.
Worse yet, when it’s time for the publisher to “hire a law firm with serious attorneys,” it’s not the publisher doing the hiring or determining what is a “serious attorney”: It’s the publisher’s insurer. And if there’s one group of people out there that uniformly knows less about either truly exceptional circumstances or dealing with badly-drafted agreements than publishers, it’s insurers.