It is a general rule of life that the party who drafts a contract is the party who benefits the most. Sure, it’s not a law or anything. Think of it as more of a guideline. Thus, when Simon & Schuster announced (in a quiet, not designed to stir the waters way) that it was changing its standard contractual language to retain rights to a book for the entire length of a copyright (expanded fairly regularly by our own Congressperson, Adam Schiff), nobody thought, “Hey, wow, that’s great for me!”
Shouldn’t the author at least retain choice and decision-making authority over his or her work while it remains in copyright?
Let us note for the record that changing standard, near-industry wide language is a bit like moving mountains a foot or so in another direction. There is rarely a touch of whimsy involved and the actual change only comes after long, dull meetings, so of which involve PowerPoint (when a meeting involves PowerPoint, you know you’re in for a good time). Generally, these changes come about when it is determined that they are good for the company.
We have no doubt that Simon & Schuster will argue, quite forcefully, that this change is good for authors. Perhaps for some, it will be. But it will be even better for the publisher. To wit:
“We believe that our contract appropriately addresses the improved technology, increased availability, and higher quality of print on demand books, and reflects the fact that print on demand titles may now be readily purchased by consumers at both online and brick and mortar stores. We are embracing print on demand technology as an unprecedented opportunity for authors and publishers to keep their books alive and available and selling in the marketplace in a way that may not have been previously possible for many authors, and are confident in the long term that it will be a benefit for all concerned. We would also like the author and agent community to know that, when necessary, we have always had good faith negotiations on the subject of reversions, and will continue to on a book-by-book basis.”
Reversion of rights — which long-time readers will recall is a favorite topic of ours (look, all humans are geeky in their own special way) — should be the most important topic on the minds of all authors in this current business environment. Sure, you’re all focused on the writing and whatnot, but if you’re not seriously grasping the implications of who owns the rights to your work, you are not serious about the business you’re in. There is a technical term for what will eventually happen to you.
Rights are squishy things. Authors, by default and law, own the copyright to their work. Publishers acquire the right to publish or distribute an author’s work. Sometimes, because of the way territorial rights work (see how all of our blatherings come together?), multiple publishing entities own different distribution rights. US, UK, Australia, hardcover, trade, mass market paperback, audio, etc. Each entity that acquires the distribution rights pays the author money, most often in the form of advances and royalties.
There are issues relating to the transfer of copyrights or specific instances of the copyright to licensees (publishers), but that is not really relevant to this discussion. If you’re as fascinated by this topic as we are, you can start here and wander where the links take you. Fascinating stuff — you’ll probably lose an afternoon to curiosity and wonder.
Simon & Schuster, being prescient enough to see the value of electronic content, has realized that they will only benefit from future riches if they own the rights to a work and are able to distribute said work for a very long time. In this case, it’s 70 years after the death of an author for works created after 1978. As the way humans access and read information continues to evolve, it’s is understandable that publishing houses would want to hold on to their assets for as long as legally possible.
Except…wow. Royalties paid to authors can range from 15% to 5%. There are tiers and whatnot that determine royalties, and, yes, there remain egregious practices in the industry such as semi-annual accountings with really long periods of time to issue statements after the close of the period, plus reserves and whatnot that lower the actual payout. Royalty rates also factor in such concepts as “deep discounts” (lower royalty) and clubs (ditto). There are many other factors, including, but not limited, to subsidiary rights (this is a good analysis of royalties, too). Electronic editions of books, under many agreements, can be considered subsidiary.
It all really depends on your specific agreements, so we’re talking in generalities when it comes to numbers.
Yeah, yeah, yeah, we know, you want to know what this means. Quite simply, it means that Simon & Schuster wants to own the rights to your book for the entire duration of the copyright. The good news is that you’ll be dead for 70 years of that time period; the bad news is that as long as S&S owns these rights, you can’t do a thing with your book. As markets evolve and grow, you will be at the mercy of the publisher’s whims as to when, where, and how your creation is exploited.
Up to this point, authors have had, at least, the promise of rights reverting to them when a book goes “out of print”, though out of print is also one of those squishy publishing things that don’t always work out the way authors expect. The new Simon & Schuster language essentially means that as long as a book exists in the publisher’s “catalog”, the publisher owns the rights. Define catalog as your basic database with titles that could potentially but not necessarily exploited, and you have a whole lot of books that their creators cannot market and sell in other ways.
While it’s possible that the eventual value of most of these books will not be much in the way of actual dollars, shouldn’t the author at least retain choice and decision-making authority over his or her work while it remains in copyright? Let’s add one more caution: since today’s agreements cannot possibly address all ways works will be published, marketed, and paid for, the chance is great that Simon & Schuster will make money off of, oh, excerpts or micro-content, that may not flow to the author.
It is likely that other publishers will follow Simon & Schuster’s lead, after performing careful in-house analysis because wholesale changes to standard language across an industry would be, shall we say?, considered suspect:
“Other major publishers have not followed suit,” said Guild executive director Paul Aiken. “We’ll be watching for that, of course, since coordinated moves would have serious legal implications.”
We have heard that the technical term for this is “collusion”. No industry wants to be accused of that!
If we were to make a recommendation to authors, we would strongly suggest following practices done in the motion picture industry: licensing rights to specific distribution areas for specific time periods. Five years, ten years, whatever seems reasonable for the specific right. When the term ends, renegotiate the deal or take your rights elsewhere. Publishers aren’t acquiring blanket distribution rights because they are nice people who want to make sure an author is published far and wide; they acquire these rights because they are valuable.
And something so valuable to publishers is surely valuable to authors, right?