Thursday, June 23, 2011

Getting Out of Your Book Contract (Maybe)

Posted by Victoria Strauss for Writer Beware

Writer Beware often hears from authors who've signed up with bad or inexperienced or dishonest publishers, and are desperate to get free. They write to us wanting to know how they can break their contracts and regain their rights. Unfortunately, there's usually no easy answer to this question, even where the publisher has clearly breached its contractual obligations. Too often, I have to tell people that they are probably stuck.

That said, here are some general suggestions, which may or may not be applicable to your situation, and may or may not work for you (obligatory disclaimer: I'm not a lawyer, so what follows should not be construed as legal advice).

1. First and most obvious, check your contract for a termination clause. If there is one, invoke it per the instructions. Beware, though, of termination fees, which some publishers use as a way to make a quick buck off the back end.

2. If there's no termination clause, try approaching the publisher and simply asking to be released. A publisher may refuse or ignore such a request--but sometimes it will recognize that an unhappy author isn't an asset, and may be willing to let him or her go.

If you take this approach, don't dwell on the problems you've had with the publisher. Try to keep your explanations as neutral as possible--such as saying that you don't feel you have the time or resources to help promote your book, or pointing to falling sales. If you feel you must mention problems, do so in a factual, businesslike manner, without recriminations or accusations. Especially, don't mention any negative information you may have found online or heard from other authors. As large a part as this may play in your desire to be free, your request is about you and your book, not other authors and their books. Bringing others' complaints into the picture is likely to alienate or anger the publisher, in which case it may be much less disposed to pay attention to your request. (In some cases, it may become twice as determined to hold on to you.)

Another thing not to do: informing the publisher that it's in breach, and that you're terminating the contract yourself. This doesn't work for two reasons. First, even if you're correct and the publisher has breached its obligations--and even if the contract includes a provision for termination due to the publisher's breach, which not all contracts do--you, personally, have no way to enforce a termination. The publisher can simply deny your allegations, or stick its metaphorical fingers in its metaphorical ears and go right on producing and selling your book.

Second, you may consider the contract to be null and void, and your current publisher may not have the resources to sue you if it disagrees--but if you want to re-publish, you'll have problems. Another publisher won't be interested in a book whose rights aren't unambiguously free and clear. Even self-publishing services require you to warrant that you have the right to publish.You must be able to show some kind of formal rights reversion document--which you won't be able to do unless your publisher actually consents to let you go.

Once again, watch out for demands for money. I've heard from some writers whose publishers attempted to blackmail them into paying a fee when they requested release, and from others whose publishers required a sizeable termination fee even though no fee was mentioned in the contract.

3. If you're a member of a writers' group, they may be able to help. For instance, SFWA has Griefcom, which will directly intercede in an attempt to resolve the situation for you. Similar services are provided by the National Writers Union's Grievance Assistance program. Novelists Inc. has a legal fund, which entitles members to up to two billable hours of legal consultation per year.

4. If there's no termination clause and the publisher refuses to consider a release request, you can resign yourself to waiting things out, either to the end of the contract term, if the contract is time-limited, or until the publisher declares your book out of print. Obviously this is more feasible for relatively brief terms of one to three years, and less so for longer terms, or for life-of-copyright contracts--especially since so much publishing now is digitally-based, and with digital publishing there's little incentive for publishers to take works out of print. Depending on your situation and your finances, however, it may still be preferable to the final option....

5. Consult legal counsel about your situation, and your options for taking legal action. This is where the issue of breach becomes relevant. A publisher may ignore an author's personal claims of breach, but may pay more attention if an attorney is involved.

If you choose this option, not just any lawyer will do. You want someone who practices publishing law. Publishing is a complicated business, with practices and conventions that are not well-understood by people in other fields; and publishing contracts are unique documents with terms and conditions that aren't found elsewhere. In order to provide effective representation, your lawyer needs the appropriate skill- and knowledge-set.

(This same caution, by the way, applies to hiring a lawyer to vet a publishing contract prior to signing it. I hear from any number of writers whose non-publishing-specialist lawyers gave the green light to a contract that would never have passed muster with a publishing law specialist, or a competent literary agent.)

There are a number of options for low-cost legal services, some of them specifically for people in the creative arts. For instance, many US states have Volunteer Lawyers for the Arts organizations, which provide services geared to helping people who work in the arts. The Arts Law Centre of Australia provides free- or low-cost legal advice and referrals for Australian creators and arts organizations. Artists’ Legal Advice Service helps creators who are residents of Ontario, Canada. Artists’ Legal Outreach does the same for residents of British Columbia, and similar assistance is provided in Montreal by the Montreal Artists’ Legal Clinic. There are also general referral services, such as the American Bar Association Lawyer Referral Network.

You can find more information and links on the Legal Recourse page of Writer Beware.

15 comments:

author Scott Nicholson said...

It may be cheaper to simply try to buy your rights back than to hire an attorney to pry them away, though with the newly recognized long tail of ebook sales, dead properties may suddenly seem to have value. The Catch-22 is that by simply asking for your rights back, the publisher may go "Whoa, maybe these are worth something" where they may have ignored you previously and let contracts expire.

This is especially tricky if they have in-print provisions that count ebook availability as "in print." If your book is not out in ebook, and the vibe is you're going to self-publish as an ebook, they may decide to do it themselves first.

If you're already self-publishing, you have a good idea of what the books are worth. Otherwise, you might have to guess the value based on the performance of similarly positioned authors.

Scott

Anonymous said...

What do you do once you are let out of the contract? How do you pitch your book to another traditional publisher? I am in this position - 2 months and 1,000 poorly set up printed copies later. The book is on amazon.com, chapters indigo, barnes and noble and is in some bookstores. I have and isbn and library of congress number. Not sure what to do. This is heartbreaking for me. I have had news releases and been interviewed by the newspaper. Your advice would be appreciated.

Shawn James said...

Once you get out of a bad Book Contract, Thank God. It does an author no good for a book's rights to be tied up for years with a publisher that's doing nothing with them. The title isn't generating the author any revenue nor is it generating the publisher any revenue.

What's crazy is how publishers want to hold on to rights that they're doing nothing with in the hopes that they'll turn into a million dolllar property. The chances of this are slim to none if no books are being printed and distributed at retail. Book catalogs aren't music catalogs, no one is eager to spend money on rights to use a book. If the title isn't being printed, then yeah, they should revert back to the author ASAP, so the publisher can invest time and resources on other authors.

eBooks are a pipe dream many publishers THINK will be a gold mine; unfortunately they only move at rock bottom prices.

What can an author do when they get their rights back? Plenty. They can shop for anothr publisher (Hopefully one that will give the book better promotion and support) or the author can self-publish the title. Or the author can go down the currently lucrative eBook market via amazon's Kindle direct publishing, Barnes & Noble's Pubit! or Smashwords. All these options are much better than letting an author's book rights languish in limbo. At least they generate revenue for a writer.

Anonymous said...

thanks for the advice - but I am still at a lost as to how to pitch my book to another publisher - not sure I want to go the "indie" way right now. Do I tell the agent or publisher in my query letter??

J.A. Pak said...

Should books contracts have a termination clause?

Shawn James said...

You can pitch it in a query letter by talking about how the book was published previously and how many copies were sold. You can also discuss what audience you want to target the book towards today. Perhaps there's a new group of readers who the book can be marketed to. Books that go out-of print can find new life if the author is savvy enough to find the right way to repackage them. Sometimes they can be more succesful than the original print run.

If you have an agent, they can try to sell it to another print publisher or an e-book publisher. it's truly up to you what you want to do with your title when you get the rights back.

Anonymous said...

Thank you so much for your feedback. I have read so many differing opinions on what to say, what not to disclose but have never found any answers to my dilemma. I guess honesty is the best policy in my situation. I don't have an agent - that's something that I want to do this time to avoid all the pitfalls I have experienced thus far.

Thanks again.

Victoria Strauss said...

On pitching a previously-published book to a new publisher...

It's tough to re-sell already-published books. If they were published by a commercial publisher, they're perceived as having already reached their audience, and if by a questionable or vanity publisher, as books that couldn't make the grade (sorry, I know that's harsh, but it's the reality).

You can't conceal from a potential new publisher that your book was previously published, so don't try. The oft-repeated advice of changing 10% of the text (or 20%, or 30%--it varies depending on who's disseminating this bit of faux advice) and then marketing it as a new work isn't kosher either, because whether you change 10% or 50% of the text, it will still be basically the same book, and your new publisher will be furious if it discovers this.

You've got two options, in my view. You can completely overhaul and re-write the book--make it, in effect, a new work. You'll still have to let a new publisher know about the previous version, so this is still a risky thing to do. Or you can try and downplay the previous publication by saying you were with an unprofessional small press that wasn't able to do much in the way of marketikng or distributing the book, and as a result only a tiny number of books were sold (this is one of the very few circumstances in which bad sales figures can actually work in your favor). In effect, you're telling the new publisher that your book was never really published at all, in any meaningful sense.

Ultimately, the only option for a badly published book to which you regain rights may be to self-publish. But that's still better than leaving your book with an incompetent or dishonest publisher.

Victoria Strauss said...

J.A. Pak,

Some book contracts do have termination clauses that allow the author or the publisher to terminate the clause with adequate notice in writing (say, 30 or 60 days). (If there is such a clause, there shouldn't be a fee attached.)

Such clauses aren't really in a publisher's economic interest, since (theoretically at least) the publisher wants to make book sales, and it needs time to do that. It doesn't want an author to blow it off after just a few months. So you don't find such clauses very often in the contracts of publishers that are serious about marketing books to the public.

More common are provisions for termination due to breach (either the publisher's or the author's or both), bankruptcy (though courts generally don't honor such clauses), and lack of sales. These aren't at-will provisions; specific circumstances must occur in order to invoke them.

J.A. Pak said...

Thanks so much!

Anonymous said...

This is a nightmare, and one that has no ending.

I have such a contract with a publisher who continues to profess on the Internet they are an outstanding publisher to work with.

The publisher (name withheld) has been notoriously late in paying royalties. Certified letters have been sent citing their tardiness and breach of contract -- and said letters are ignored.

The clause below is in in the contract. As you can see, the author has no right to terminate said contract after three years. The three years have expired and I have sent a certified letter stating I wish to end the contract due to breach in royalty payments. I have never been paid royalties on one book they released 2 years ago.

The publisher does not respond and continues to sell my books.

Yes, yes, I know, I should not have signed such a contract, but must one read every line with a magnifying glass in hand when they laud their site and themselves as legitimate, honorable publishers?

Here's the clause:

(a) The term of this Agreement shall continue for three years after the Effective Date (“Initial Term”), and thereafter shall automatically renew for consecutive one year terms (each a “Renewal Term” and together with the Initial Term, the “Term”), unless terminated by Publisher on written notice to Author given by Publisher at least 60 days prior to the end of the Initial Term or any Renewal Term.

Do you see any part of this clause that allows the author to terminate after three years? No, so therefore, this publisher can continue to publish into eternity.

Any suggestions? Anyone?

How can I get them to release my book?

Anonymous, but legitimate.

Victoria Strauss said...

Wow, Anonymous, that is indeed a bad clause--it's totally weighted on the side of the publisher. I really don't see that the author has any recourse here.

Please contact me directly: beware [at] sfwa.org. I'd like to know who the publisher is, and take a look at the entire contract.

small press writer/ publisher said...

The shoe is at the moment onthe other foot here. I'm part of a small press run by writers and a new writer has asked for a termination clause. 3 years of 5000 books whichever comes first. In my estimation the book might sell 2-3000 over a couple-three years and i don't want to lock an author in unnecessarily but I haven't had this request before and I wonder how common it is.

Anonymous said...

I realize I'm a little late to the discussion, but I am now going through this situation and need some advice.

I entered into a contract with a subsidy publisher. As a newbie, I didn't know that they were a subsidy publisher because they call themselves a traditional publisher. Regardless, I have paid a portion of their up-front "publicity" fee but have since decided that I do not want to pursue this subsidy route after all.

How can I get out of the contract? There is a termination clause in the contract but it focuses on production and post-production, distribution, promotion, etc. I'm in none of those stages, as I have not yet submitted my manuscript to the publisher to begin the production process.

I sent them an email and they were sorry to hear my decision to terminate--I didn't go into specifics, but they said they don't issue refunds. Can they keep my money even thought a "transaction" has not taken place?

Thanks for your help.
Anonymous

Victoria Strauss said...

Anonymous 9/26/13--

Unfortunately, a transaction did take place when you signed their contract and engaged their services. They're a private business, so they can set whatever refund policy they like.

If you paid by credit card or Paypal, you can dispute the charge--say you were deceived by the way the publisher presented itself (and if it's the company I think it is, you may find information here and elsewhere online to support that). Such disputes are taken seriously, and Paypal or your credit card company will investigate. You may be able to get your money back that way.