Please welcome guest Susan Spann , a publishing attorney and author of the Shinobi Mysteries, featuring ninja detective Hiro Hattori and Portuguese Jesuit Father Mateo. Her debut novel, Claws Of The Cat  (Minotaur, 2013), was Library Journal’s Mystery Debut of the Month and a Silver Falchion finalist for Best First Novel. Her third Shinobi Mystery, Flask Of The Drunken Master,  released in July 2015, and the fourth is scheduled for publication in August 2016. Susan is the Rocky Mountain Fiction Writers’ 2015 Writer of the Year, and the founder and curator of the Twitter #PubLaw hashtag, where she provides publishing legal and business information for writers. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium.
As an author and transactional attorney with almost twenty years’ experience representing authors, publishers, and artists, I understand how critical it is for authors to understand their legal rights—and how few good sources of legal information exist for authors seeking to learn how to do it. I founded the #PubLaw hashtag, and wanted to blog for WU on legal issues, to help empower authors by providing information about writers’ legal rights and how to protect them.
Obtaining Reversions of Publishing Rights: the Good, the Bad, & the Ugly
In my work as a publishing lawyer, I frequently hear from authors hoping to terminate publishing contracts and obtain a reversion of rights to their published works. Rights reversion can be tricky, especially when the contract doesn’t give the author a unilateral (meaning “one-sided”) right to terminate. However, authors do have several options when it comes to terminating old or dysfunctional contracts and obtaining reversions of publishing rights.
Today, we’ll walk through the steps an author should follow to try and obtain reversion of publishing rights from a traditional publishing house.
Step 1: Review the Contract. In almost all cases, publishing contracts contain provisions stating when and how the contract can be terminated, and by whom. If the contract allows you to terminate under your current circumstances, follow the procedures in the contract to request reversion of your rights. Normally, these procedures include a written notice to the publisher (often sent via certified mail) stating the reasons for termination. Comply with the contract procedures exactly. If you have questions, or don’t understand the contract terms, consult a publishing lawyer.
Step 2: Ask the Publisher to Revert Your Rights. If the contract doesn’t grant the author the unilateral right to terminate, or if your situation doesn’t meet the requirements for unilateral termination, consider asking the publisher to agree to termination of the contract and a reversion of rights. By law, the parties to a contract can always modify or terminate the agreement by mutual consent, even if the contract doesn’t say so. Many publishers will agree to terminate and revert the publishing rights to works when sales have dropped so low that keeping the work in print creates more obligations than benefits. Make sure your request is polite and professional—regardless of the nature of your relationship with (or opinion of) the publisher. Respectful communications receive more consideration than insults or threats.
Step 3: Consult a Publishing Attorney. If the contract doesn’t grant you obvious termination rights and the publisher refuses a polite request for termination and reversion, there may still be creative ways to obtain termination of the contract and reversion of publishing rights.
However, in most cases the author’s right to terminate a contract and obtain a reversion of publishing rights is limited by the language in the agreement. If the contract doesn’t grant you termination rights, and publisher isn’t in breach, your options may well boil down to persuading the publisher to agree to termination—or waiting until the contract allows you to terminate without the publisher’s consent.
Which brings us to the final, forward-looking step in the process…
Step 4: Ensure all Future Contracts Contain Unilateral Termination Rights and Out of Print Clauses Tied to Royalty-Bearing Sales. This won’t help much with your old agreement, but will ensure you don’t end up in this situation again.
Going forward, make sure all agreements you sign contain:
(a) A unilateral right for the author to terminate the contract if the work goes “out of print” and
(b) Language tying “out of print” status to a stated number of royalty-bearing sales. (For example: “the Work will be considered “out of print” if the Publisher fails to sell at least 250 royalty-bearing copies of the Work during any period of twelve consecutive months (or longer) during the term of this agreement.”)
Note: Sometimes the publisher may want an additional 6-12 months to increase sales and return the work to “in print” status before your termination becomes effective. That’s fairly standard, too.
Tying out of print status to royalty-bearing sales and giving the author the unilateral right to terminate if the work goes out of print makes the contract more balanced in terms of ensuring that the publisher’s rights continue only so long as publication of the work is actually profitable. This language also prevents a publisher from claiming a work remains “in print” as long as the ebook is available through Amazon or the publisher’s own website.
Unfortunately, once the contract is signed, an author’s rights are limited to the contract terms (unless the publisher agrees to a request for termination). When it comes to publishing contracts, the best defense is a good offense—negotiating for unilateral termination rights in the agreement, before you sign.
Your turn: Have you terminated a contract and obtained rights to your published works? What was your experience?