Fair Contracts For Authors: Don’t Let Go Of Your Copyright

iStockphoto / Ociacia
iStockphoto / Ociacia

Novelists Inc. Plans Authors Guild Session

There’s news this week from the roughly 900-member Novelists Inc. (NINC) organization that the Authors Guild will present a special session on rights reversion at NINC’s conference, 30th September to 4th October.

Executive director Mary Rasenberger and staffer Ryan Fox will go to St. Pete Beach for talks with NINC members, many of whom are especially concerned about this area of author contract reform.

Mary Rasenberger
Mary Rasenberger

As I covered here at Thought Catalog in Publishing’s Bad Infiniti: Authors Guild Calls For Time-Limited Contracts, the Guild’s Fair Contract Initiative has singled out rights reversion clauses in standard industry contracts as being particularly burdensome to authors. From its white paper on the issue:

Publishers have cleverly managed to craft “out of print” clauses that make it almost impossible for authors to recapture their rights. Classic contract language states that a book is not out of print as long as it is “available for sale in any edition.” So publishers “release” the book in a print-on-demand or electronic edition that’s always available, even if few copies are actually sold. By relying on language originally intended to provide a real reversionary right, a publisher can now hold onto a book forever even if it’s not actually doing anything with it. That is not how “out of print” was supposed to work.

The author-members of NINC are multi-published, as a criterion of membership. Some members have more than 100 titles to their names. It’s said that the median in the group is some 25 books per writer. And yet many of them — eager to get their rights reverted to them so they can self-publish their backlists — are being blocked, their publishers declining to revert the rights to these commercially moribund titles.

Conference organizers tell me that two NINC members report 70 and 80 titles, respectively, being held by one of the largest publishers in the country, with no apparent plan to revert the rights to the authors.

The books in question are “either tossed into ebook or sold to obscure countries and thus termed still in print,” according to one NINC author. I’m withholding the name of the writer speaking to me since her own publisher might not welcome the frankness of her comments.

“Not many people want to think about ‘those books,'” she says in a note to me, “but those books, those draconian contracts, could be the wedge that opens up everything else.”

We had a spirited #FutureChat discussion last week on the problem of rights that don’t revert to the author. You can read the chat’s recap of that discussion at The FutureBook.

One of the interesting things you’ll find there is the popular author J.A. Konrath not only noting that he got his own backlist back (he recommends using an attorney), but also reiterating some of his earlier complaints about the Guild. Konrath is not alone, particularly in his criticism of the Guild for joining in Authors United’s complaints about Amazon. You can read a very strong commentary from Konrath on the Guild here.

And while Konrath, as always, articulates his views well, it’s interesting that he says that the Guild is “only whining” in its Fair Contract Initiative.

“A publisher can now hold onto a book forever even if it’s not actually doing anything with it. That is not how “out of print” was supposed to work.”
Authors Guild, Fair Contract Initiative

Meeting with so large a standing, well-organized authors collective as NINC and conducting special programming in rights reversion issues to this well-targeted group looks like more than whining. The Guild logically can expect new membership and a widening base of support in calling for contract reform. Any backing for its Contract Initiative from writer-members of a group of NINC’s size — and with many long-accomplished members now at what I call “backlist age” — may mean an expansion of backing, helpful to the Guild in presenting its grievances to publishers.

I am programming a part of NINC’s conference this year, not the part that the Guild will appear in but a “First Word” program focused on international issues for authors. I’m glad I’ll be in place for the rest of the conference so that I’ll be able to see Rasenberger and Fox meet with the authors.

I’ll have live coverage from their workshop at the hashtag #NINC15.  News of the session’s timing will be available in coming weeks.

‘Authors, Keep Your Copyrights’

In the meantime, the Guild has issued its fourth white paper in the Fair Contract Initiative, this time warning authors that “no reputable publisher should demand that you allow it…to take your copyright or to publish the copyright notice in any name other than yours.”

The real target here is university presses. The Guild writes:

Most trade publishers do not ask for an outright assignment of all exclusive rights under copyright; their contracts usually call for copyright to be in the author’s name. But it’s another story in the world of university presses. Most scholarly publishers routinely present their authors with the single most draconian, unfair clause we routinely encounter, taking all the exclusive rights to an author’s work as if the press itself authored the work: “The Author assigns to Publisher all right, title and interests, including all rights under copyright, in and to the work…”

Bad idea. As Cornell University’s Copyright Information Center advises, “When you assign copyright to publishers, you lose control over your scholarly output.

In an interesting experiment, the Guild “asked several representatives ‘Why is a clause granting copyright to the publisher the default language in university press agreements?'”

Answers gathered by the Guild:

  • “We are a non-profit press and we can’t do things that commercial trade presses do.”
  • “The press is better positioned than the author to defend the copyright by use of premium outside counsel, as well as by use of an anti-piracy service to curb piracy.”
  • “Having the copyright in the press’s name allows us to work freely to maintain the integrity of the work and maximize its publishing life.”
  • “We’re close enough to the work to do the best job and we have incentive to protect the publishing mission.”
  • “It makes it easier for the press because it doesn’t have to ask for an author’s approval when permission uses are granted.”
  • “It eliminates any confusion as to which party should be contacted regarding re-use and sub-rights, etc. and it simplifies things in regards to piracy as well. Trade authors are more likely to have agents who may retain certain sub-rights and exploit them independent of any publisher relationship.”
“Most scholarly publishers routinely present their authors with the single most draconian, unfair clause we routinely encounter, taking all the exclusive rights to an author’s work as if the press itself authored the work.”
Authors Guild, Fair Contract Initiative

The Guild’s response is to dismiss every one of those answers — with a laugh:

Not one of these rationalizations passes the giggle test. While we recognize that most academic presses are non-profits and have narrow margins (the books tend to be scholarly and noncommercial), and many do indeed struggle to make ends meet, we take issue with the notion that taking an author’s copyright is necessary.

The organization closes this white paper with one of the baldest statements in its series:

Oppressive copyright grabs are routinely negotiated out of agreements by knowledgeable authors and agents, and there is no credible justification for their existence. It’s time for them to go.

If this is merely whining, it’s high-calibre stuff. And if you know an author working in the university-press setting, getting this positioning to him or her would be a favor. TC mark

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