Rights Reversion
‘Be very careful what you sign,’ says Sherry Ficklin (www.sherryficklin.com), author of over a dozen teen and young adult books, as well as several romantic novels written under the name of SJ Noble. ‘Be sure the contract, and specifically the release clause, is to your benefit.’
When it comes to the business of writing, checking the release clauses, the section of the contract explaining how you can escape from the relationship with your publisher and claim back your rights, is not always the highest priority when you’re caught up in the excitement of signing a brand new publishing deal. Unfortunately, it should be.
When we grant a publisher the right to publish our book, it’s for a fixed term. That could be for a few years or the duration of copyright (which is the rest of our lives, plus a further 70 years). A lot can happen in that time. Publishers can go bust, lose interest in us as an author, fail to reprint our book when stocks run low, or completely mess up a project. Being able to reclaim our rights can help us salvage a project and breathe new life into it. So the first step to getting our rights back begins with the contract negotiations at the start of our business relationship.
Contract Clauses
Get it wrong at the start and life becomes difficult if the relation later turns sour. Sherry had two bad experiences, which she puts down to her naivety at the start of her writing career. ‘Even my worst contracts I had looked over by a lawyer before signing. What I didn’t know then, was that a contract lawyer in general has no idea how book contracts should work.’
One publisher simply refused to give her back her rights, because that’s what the contract permitted, and another only did so after several years of wrangling. Sherry says, ‘A contract is always a negotiation, and you should never be afraid to ask for better terms.’
Having a contractual clause that merely gives the author the option to request their rights back is of little value. What’s the point of being able to make a request if the publisher can simply reply with a ‘No.’? A clause might look acceptable, but if you’re not an expert in publishing contracts then use the services of someone who is. Many writing organisations, like the Society of Authors, offer contract vetting services to members.
The most common moments when authors can request their rights back are:
• when the publishers go into liquidation or receivership,
• when your book goes out of print,
• or if the publisher is in breach of the contract.
Determining when a book goes out of print isn’t easy these days because, technically, a book may never go out of print if it’s sold via print on demand or as an ebook. One of my contracts enables me to ask for my rights back when sales of print books are fewer than 50 copies in a 12-month period.
Get the clause right, and things can go much better for the author, as Sherry has also discovered. ‘I was signed to one publisher but, before my release day came, the imprint I was publishing with was dissolved. The publisher was still in business, but my specific imprint was gone. They offered to take my book into a different imprint, but I requested my rights back instead, and they had no problem giving them back to me.’
Professional Approach
If circumstances arise enabling you to formally request your rights to be reverted, always remember that this is a business relationship. Read your contract, identify the clause you can invoke and formally put your request in writing, usually to the legal or contracts department.
‘Be professional and keep copies of everything,’ says Sherry. ‘And expect it to be a negotiation. The more civil you can keep it, the better you will end up. However, if you find yourself in a real bind, don’t be afraid to seek help.’
Whatever you do, don’t go public with your anger, particularly on social media.
‘Any contracts you sign are often confidential,’ Sherry warns, ‘so you could be in breach if you opt to go public. And also know that going public with a feud with a publisher, even if you are 100% in the right, can still hurt your chances with other publishers down the road.’
Over the years, I’ve successfully secured the rights back to two of my books. One Hundred Muddy Paws For Thought was the follow up to my One Hundred Ways For A Dog To Train Its Human, and it sold over 50,000 copies. But when I came to order some more author copies from the distributor a few years later they advised me that the book was out of stock.
However, because the book was out of stock at the distributors it meant that the publisher would have to arrange for a reprint. At the time there was no ebook version of the text and I was keen to rectify this, but the electronic rights were held by the publisher.
My contract had a clause clarifying that if the book was out of print and the publisher did not arrange for a fresh print run within three months of me asking them, I was then entitled to ask for my rights back.
So I emailed the legal department, enquiring if the book was out of print and, if so, whether they had any plans to publish a new print run in the next three months.
A few days later, the publisher responded, confirming it was out of print and, upon reflection, there were no immediate plans to order a new print run. I thanked them for everything they had done with the book and then asked for my rights back, as per the contractual agreement. Two weeks later I had a letter formally advising me that this had happened.
Life After Reversion
When you’ve had your rights returned, you’re free to offer them elsewhere. Another publisher may be interested in your work, even though your writing no longer suited the target readership of your previous publisher.
Indeed, with my second dog book, an editor at another publisher expressed an interest, and discussions took place about how to relaunch the book. But unfortunately this all came to nothing because the publishing directors of that company decided then to withdraw from the gift book market.
But with the rights still in my hand, I ploughed on and self-published, both in print and electronically. I’ve since sold several hundred copies of the book, in both formats, bringing in more money, which wouldn’t have happened had the book remained out of print. And I know that sales of this book have lead to additional sales of my first dog book, which is still published by Hodder & Stoughton. Claiming my rights back has enabled me to generate more income, and increased sales of my backlist.
Revision Considerations
While many writers think about the opportunities that might arise when they successfully secure the return of their rights, there are some other important points to consider.
Firstly, whether you secure a new traditional publisher for your work, or decide to self-publish, you need new readers to buy this book. ‘Most of the time,’ reminds Sherry, ‘the bulk of the people who were going to buy that book already have. Your fans already purchased the book, so don’t expect them to buy it again. If you are re-publishing to reach a new audience, know that you are, essentially, starting at a disadvantage because re-issues don’t get picked for advertising the same way new releases do. Often, you are better to either repackage it with new material, or to simply work on another book. Don’t expect to get your rights back, self-publish it, and see the book take off.’
However, this could happen if the design of the book’s original front cover wasn’t appropriate, perhaps failing to attract the target readership in the first place. Sometimes placing your book with a new publisher can give it the fresh look, appeal and marketing strategy that you were looking for originally.
It’s also worth remembering that if you regain your rights in a book, and then release it as a new edition (either traditionally-published or self-published), your new edition starts with a review-free slate. If the first edition with the traditional publisher garnered 500 five-star reviews on Amazon, those reviews stay with that edition. They are not transferred to your new edition.
Likewise, when you regain your rights in your work, you are only free to use the work that you licensed to the publisher in the first place: the words. You do not have any right to use the cover, or even the text layout of the book. Those creations fall under the publisher’s copyright, which they still own.
There’s a lot to think about when it comes to getting your rights in your work reverted. But breaking up with a publisher needn’t be a messy divorce, if you’ve done your pre-nuptial homework with the contract first. Like all divorces, sometimes a break-up can lead to a new exciting relationship in the future.