Blogger: Rachelle Gardner
A blog reader wrote:
I’ve found myself in a frustrating situation with a publisher regarding the definition of “out-of-print” [and not being able to obtain] a reversion of rights to two of my novels. These novels have earned back their advances but are no longer available to the public. I’m guessing this situation has come about because I signed these contracts before e-book rights were contracted. Do authors still have so much difficulty obtaining a reversion of rights when their books are no longer in print?
Good questions. Rights reversion is an important element in a publisher contract, and this is one of the reasons to have an agent or someone knowledgeable in publishing who can negotiate a contract for you.
“Reversion of rights” simply refers to the point in time at which the publisher no longer owns the rights to your book. When the rights revert to you, the author, you’re free to sell them again or do whatever you want with your book. In the past this wasn’t as important because it was unlikely that another publisher would want to take on an already-published book. Your main option was to self-publish and you’d likely not be able to make enough money to cover your self-pub costs.
But all that’s changed in the digital age. Now, when the rights revert, you can inexpensively self-publish and keep it for sale forever, perhaps making a few extra bucks a year. So there’s a strong reason to want to get the rights back as soon as the publisher is no longer making you any money.
Of course, this is also why publishers want to hang on to rights as long as possible. Once a book stops being printed in the ink-and-paper format, the publisher can benefit from keeping it “in print” and continuing to sell e-versions. As long as they have a chance to make money from your book, they may not want to give up the rights.
In the writer’s case above, it sounds like her books are not available in any format, and yet the publisher is hanging on to the rights in case they get around to making them available as e-books and making a few more bucks someday. Apparently there was no clear provision for defining “out of print” and “reversion of rights” in her contracts which were signed over a decade ago—a common issue for many writers.
Today, we are very clear in our contracts about what defines out-of-print and triggers a reversion of rights. Typically, the publisher wants to keep the rights as long as they’re selling a certain base number of units or making a threshold amount of money. For example the contract may state that they retain the rights as long as the author is receiving “$250 in royalties over two consecutive royalty periods.”
As an agent, I have to question whether $250 is enough to justify their keeping the rights, and I usually try to get that threshold raised (but publishers are not excited to grant this). Usually there will be a provision that you cannot request a reversion of rights if your advance isn’t earned out. The contract language may state that if the advance is earned out and the publisher’s sales fall below a threshold, the author can request a reversion of rights if the publisher doesn’t bring their sales up in the next royalty period. So again, it’s helpful to have an agent who can watch your sales in each royalty period, and make that reversion request at the right time and in the proper manner.
As you can see, with the possibility of a passive income stream coming from e-books they don’t have to promote, print, ship or store, publishers are going to want to hang on to the rights as long as possible. With the difficulty of making money in today’s publishing economy, this is a good thing to help keep publishers in business. As an agent, I want to balance that with what’s best for the author, and try not to let the publisher keep rights past the point where they are reasonably exploiting those rights.
The writer above is in a difficult situation—the publisher appears to be holding rights they’re not exploiting, so nobody’s making money, yet she doesn’t have the ability to take back her books and make money on them again herself. She may need a knowledgeable lawyer or agent to try and work something out with the publisher—convince them to either offer her books digitally or release the rights. She may not prevail, depending on who her publisher was and what her original contract says.
I hope this makes Reversion of Rights pretty clear. Anything you don’t understand? What are your thoughts on rights reversion?
Agent @RachelleGardner explains Reversion of Rights in publishing. Click to Tweet
In the age of e-books, Reversion of Rights is a big issue, says @RachelleGardner. Click to Tweet
“Reversion of Rights” means the publisher no longer owns the rights to your book – you do. Click to Tweet
It’s stories like this that make me want to publish books on my own instead of seeking a publisher
Roxanne Sherwood Gray
Stories like this remind me how much I want an agent in my corner.
Thank you Ms. Gardner, another interesting post. I wanted to ask if you would link your blog posts over on google + (I see you have a page, but nothing public), because there are a lot of writers and writers communities over there who could use this information. I have been posting up a link or two from you, but if we can follow your page that would be a help 🙂
Q: Is there generally also a time-frame for reversion of rights? Or as long as the publisher is giving the author (or say, their estate) the required royalties can the publisher keep selling their work?
David A. Todd
Why not a rigorous time-based expiration of rights? Something like:
“Publisher’s right to publish this book in any and all forms will expire 5 years after the date of acquisition or 4 years after the date of publication, whichever comes sooner. This time period may be reduced or extended by agreement in writing by both parties.”
That’s what I would want, which is why I doubt I’ll ever be traditionally published.
Thanks for explaining this, Rachelle, and for answering a tricky question. Your explanation is helpful for someone who hasn’t had to tackle this aspect of publishing yet. I can see how this aspect of the contract can become a conundrum for publisher and writer.
It makes sense to give writers the freedom to have the rights to their work reverted back to them at some point. The idea of putting a profit point into the decision of WHEN this happens makes sense to me. As someone who wants to pursue traditional publishing, I would definitely want to have an agent who understands the nuances of the contract and can think through how a book contract would affect a writer in the long term.
Sounds like a delicate tug-of-war with benefits for both sides. Another reason to have an agent on my side. Thanks, Rachelle, for your explanation.
Good insights Rachelle – I will keep this in mind for future projects
Publishers really don’t have much incentive to give back the digital rights – the author’s going to work to sell the book anyway, so why not take advantage of the minimal costs and free labor?
And it’s not a terrible deal for the author. True, the publisher’s price may be higher that if it were self-published, but with the publisher’s imprimatur comes the implied assurance (not always met) of quality.
Regarding the scenario you described – perhaps the publisher prefers to keep a more streamlined catalog by ‘resting’ some titles, as sales begin to drop?
I used to publish and sell AV materials on architectural and art history. The catalog ran to over 250 titles, and when I advertised them all, sales fell. When I advertised about a third of the catalog at a time, sales rose (and catalog-publishing costs fell – this was in the day of print catalogs). (I bought all rights, no reversion.)
A similar dynamic might be at work, in that the publisher doesn’t want their website to look like a cluttered attic full replete with every title they’ve picked up. Bad for business-to-business relationships, and bad for direct sales (if they do that).
It would be best for the writer to know whether there are concrete plans for her book to be placed back into the active catalog – but realistically, she probably won’t get more than a noncommittal ‘in due time’. It’s the answer I would have given, if asked. Not to be mean, but because I would not want to be locked into a hard time commitment with an already angry author. That’s the reality – or it would have been for me, faced with this situation.
Thank you for a very insightful post, Rachelle!
Interesting post, Rachelle. It seems like the digital age has made some things easier and others more complicated. Thanks for sharing information on this topic, as I hadn’t thought much about it.
So timely. I have an out of print children’s book I would like to get back. Thanks for the great post!
Thanks for shedding light on this topic Rachelle.
I have a friend who’s addressing some of these issues with her first book. Thankfully she has a very competent agent to walk beside her as she makes the best decision for her future career.
Laura Allen Nonemaker
Has anyone run into the issue of having the copyright on the text of your book but the illustrations being owned by the publisher. Mine were done by an in-house artist from my specifications. I own the characters but not the depiction of the characters in the illustrations. I would like to do more books and self-publish. If you have had a similar experience or know of someone who has, how was it handled? Thanks for whatever input anyone has!
My non fiction publisher wanted to do an eBook of my book and I reminded her she did not have the digital rights (wasn’t in my original contract because I had mentioned it to her at the time (7 years ago)and she said she didn’t want to be bothered by that. I received an addendum to my contract.
Great post. I have heard this mentioned by monthly speakers at a few of my local RWA chapter meetings.
This was the #1 reason I wanted an agent. Things are changing so dramatically all the time, it is necessary to have someone on the watch. I have several writer-friends who have done well re-issuing novels that would have otherwise been out of print. I want to make sure I don’t lose opportunities like this because I don’t understand all the nuances of the business. Thanks for keeping us informed!
Rachelle, you have made Reversion of Rights clear. My thoughts on rights reversion are… I need an agent! I would hate to fail in the negotiations and be stuck later down the road.
Thanks for explaining this issue so well.
I have a publisher, but not an agent. I think I am doing most of the marketing. Today I saw a message on Amazon.com that for my novel, Darby, Amazon usually ships (print Edition)within 1 to 3 weeks. The message before today stated 1 to 2 days. What’s up? People might not purchase if they have to wait 1 to 3 weeks for a novel to be shipped.
Thanks for a very educative post Rachelle.
I was under the impression that after a certain period – 20 years? – of the book being out of print (not being available in any format) rights would revert automatically to the author.
Am I very wrong?
This is a very helpful post, and I hope you don’t mind, Rachelle, that I have posted a link over on LinkedIn – the topic was under discussion over there just this morning and I felt that it was extremely relevant and might help.
As someone who is still re-drafting my first novel, I don’t yet have an Agent but am beginning to think that, all things considered, it would be the best (safest) way for me to go…
Thanks for your post!
So, if you do get your rights back, can you self-publish that book under the same name? Should you?
Great post. Today’s contracts are so complex, this is why many authors prefer an agent. A good one is so worth it!
Thank you, Rachelle, for demystifying this nebulous topic. Very helpful!
Very interesting, and something I have been pondering lately.
Excellent post! Thank you, Rachelle!
Hi Rachelle, and friends. I am glad I found your site. 2 weeks ago, I went to Amazon to check on my book sales. Imagine my surprise, no my shock, when I saw I have the trade paperback and a Kindle version of my book. Ladies, I almost fainted. This was news to me. It wasn’t in my contract, signed in 2010. Book launched June 2011. I am in North America, the publisher in the UK. We’ve worked it out. I decided to market my e-book, have a cake party and another launch. Why not. Strangely, I found a site 21 Ways to Market Your e-book. Everything happens for a reason.
Success to all.
I had a book published in 1995 St Martin’e Griffin in New York. It has been out of print for years and was not a money makes to begin with. I can’t reach anyone who can or will tell me if I can reprint (kindle). I did not have an agent. Any help? Can I just do it? Thank you for any advice.
I recently regained rights to Books 2 &3 of a series published by a Big 5 publisher. However, Book 1 continues to sell just enough ebook copies to not meet the terms for reversion spelled out in my contract . Book 1 has more value to me than it does to them, so can I offer to BUY back the rights to Book 1? Is there a formula for making a reasonable offer? All advice appreciated. Thanks!
The publisher of my 2004 hardcover novel graciously reverted the digital electronic rights back to me, and I plan to release it as an ebook.
Does that reversion mean that I now own the copyright for the new e-book, or do I need to register for a new one, or is it forever theirs? In other words, what is the relationship between reversion of rights to copyright? Thanks!
The copyright is always in the name of the author, not the publisher, so you don’t need to do anything about that. You will need a new ISBN number to publish this new edition of your work. You get that from Bowker (Google it). Good luck!
Hmmm. In the frontispiece it says copyright © 2004 University of Tennessee Press….
Arlan D. Heinicke
I have a self publishing book I wrote, and I want to get my rights back from the publisher which are supposed to belong to me. I want to know what is the proper way of doing that.
Thank You. any help would be appreciated.
Not sure what you mean you have a “self publishing book” you wrote–that implies YOU were/are the publisher, so how is it that some other publisher has the rights?
In any case, my publisher was gracious enough to simply return the rights to me, since they weren’t doing anything with the book or selling it anymore. They did it with a legal letter they sent me.
How do you get the rights back from your publishing company if they close their doors-go bankrupt? And they dont have any way to comtact them.
This is enlightening
I’m an author and my contract was up with GenZ Publishing this month.
I’ve contacted the publisher, Morissa Schwartz several times and she won’t take my book off Amazon. She lied in an email and said she did.
Do not trust GenZ or Morissa Schwartz, she is a fraud!