Monday, May 25, 2015

Ever wondered how to get reversion rights from your publisher? Here's a very good article:


Posted by Victoria Strauss for Writer Beware

Partly in connection with the controversy surrounding troubled publisher Ellora's Cave, I've been getting questions about how to go about requesting rights reversion from one's publisher.

There's no official format for a rights reversion request, and if you do a websearch on "rights reversion request" you can find various pieces of advice from authors and others. Here's the procedure I'd suggest. (Note that I'm not a lawyer, so this is not legal advice.)

First of all, if you have a competent agent, ask your agent to handle it. Especially if you're with a larger publisher, your agent is more likely to know exactly whom to contact, and in a better position to push for a response.

If you don't have an agent, or if your agent is not very competent or not very responsive:

1. Look through your contract to find the rights reversion or termination language. Sometimes this is a separate clause; sometimes it's included in other clauses. See if there are 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 sales income fall below a stated minimum.

The ideal reversion language is precise ("Fewer than 100 copies sold in the previous 12 consecutive months") and makes reversion automatic on request, once stipulations are fulfilled. 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 doesn't have to revert if it publishes or licenses a new edition within 6 months of your request).

Worse, your contract may not include any objective standards for termination and reversion, leaving the decision entirely to the publisher's discretion; or it may include antiquated standards ("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"--meaningful in the days when books were physical objects only and print runs could be exhausted, but 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 language. This is a big red flag: a life-of copyright contract should always be balanced with precise reversion language.

2. Begin your reversion request by stating your name, the title(s) of your book(s), your pub date(s), and your contract signing date(s). I don't think there's any need to create separate requests if you're requesting reversion on more than one book; but there are those who disagree.

3. If you do meet your contract's reversion stipulations, indicate how you do ("Between August 1, 2013 and July 31, 2014, Title X sold 98 copies") and state that per the provisions of your contract, you're requesting that your rights be reverted to you. If the contract provides a specific procedure for making the reversion request, follow this exactly.

4. If you don't meet your contract's reversion stipulations, if reversion is at the publisher's discretion, or if your contract has no reversion language, simply request that the publisher terminate the contract and return your rights to you. If there's an objective reason you can cite--low sales, for instance, or your own inability to promote the book--do so, even if those reasons are not mentioned in the contract as a condition of reversion.

5. DO: be polite, businesslike, and succinct.

6. 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 negative. As much as you may be tempted to vent your anger, resentment, or fear, rubbing the publisher's nose in its own mistakes amd failures will alienate it, and might cause it to decide to punish you by refusing your request or just refusing to respond. Again: keep it professional and businesslike.

7. Request that the publisher provide you with a reversion letter. Certain contract provisions (such as the author's warranties) and any outstanding third-party licenses will survive contract termination. Also, publishers typically claim copyright on cover art and on a book's interior format (i.e., you couldn't just re-publish a scanned version of the book), and the right to sell off any printed copies that exist at the time of reversion (with royalties going to you as usual). Some publishers are starting to claim copyright on metadata (which they define not just as ISBNs and catalog data, but back cover copy and advertising copy).

I've also seen publishers claim copyright on editing (which means they'd revert rights only to the originally-submitted manuscript). This is ridiculous and unprofessional. For one thing, it provides no benefit to the publisher--what difference does it make if an author re-publishes the final version of a book from which the publisher has already received the first-rights benefit? For another, if edits are eligible for copyright at all, copyright would belong to the editor, not the publisher. If you find a copyright claim on editing in a publishing contract, consider it a red flag. If the publisher makes this claim without a contractual basis--as some publishers do--feel free to ignore it.

To give you an idea of what an official reversion letter looks like, here's a screenshot of one of mine.

8. If the publisher registered your copyright, ask for the original certificate of copyright. Smaller publishers often don't register authors' copyrights--again, check your contract, and double-check by searching on your book at the US Copyright Office's Copyright Catalog.

9. Send the request by email and, if you have the publisher's physical address, by snail mail, return receipt requested.

Hopefully your publisher will comply with your reversion request. But there are many ways in which a publisher can stall or dodge, from claiming that your records are wrong to simply not responding. If that happens, there's not much you can do, apart from being persistent, or deciding to take legal action--though that's an expensive option.

One last thing: a publisher should not put a price on rights reversion. Charging a fee for reversion or contract termination is a nasty way for a publisher to make a quick buck as a writer goes out the door. A termination fee in a publishing contract is a red flag (for more on why, see my blog post). And attempting to levy a fee that's notincluded in the contract is truly disgraceful.