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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.

36 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.

Anonymous said...

Can you terminate a book contract if no sales (as in zero) have occurred, but there is no clause in the actual contract about expectation of sales being linked to the contract?

And if the contract stipulates that the publisher will have the rights indefinitely?

NATURE OF RIGHTS AND PERMITTED FORMATS

Author grants Publishers:

a. An irrevocable exclusive right to reproduce, republish, transmit, sell, distribute, and otherwise use the Work in electronic and print editions and in derivative works throughout the world, in all languages, and in all media now known or later developed for an indefinite period of time

b. An irrevocable exclusive right to create and store electronic archival copies of the Work, including the right to deposit the Work in open access digital repositories where deemed appropriate by Publishers for an indefinite period of time.

Victoria Strauss said...

Anonymous,

I can't give you an answer without seeing the contract. The important clauses here are the grant of rights clause and the termination clause, and I need to see both in their entirety (as well as the rest of the contract--different clauses affect one another) in order to give you an opinion.

Email me at beware [at] sfwa.com. All information shared with Writer Beware is held in confidence.

Anonymous said...

Slightly different problem here. Author died in 1976 just before book was published. Book was a success and went into two editions before going out of print in 1990. Royalties were paid to her heir (no relative a former student). In 2002, as an author working in same field, I approached heir to update it. He said he gathered it had gone out of print as the royalties had ceased coming to him but he had no contact from the publisher (big "reputable" international concern either then or later. However he had all original author's material still filed in his studio, so with his approval I contacted publishers about producing an updated edition. Was told they were not interested. I pointed out it was out of print and had been for some time and that I knew the copyright rested with the original author. Publisher responded that it did, but they held publication rights and they were not prepared to relinquish them. Heir asked to see original contract and was told only available to author and not to him without a court order. He is an artist and not interested in legal wrangles. So he backed out at that point and I had to give up and the book remains out of print, not updated and unable to be got back from the publishers. Gather this sort of thing is not uncommon.

Victoria Strauss said...

Anonymous,

I wonder if the publisher's refusal means that it's in the process of digitizing (or planning to digitize) its backlist. This is a very attractive proposition for publishers, because once the book has been converted it costs nothing to keep it available, and a publisher with a deep backlist can profit from the long tail even if each book sells only a handful of copies.

For older contracts that pre-date the digital revolution, though, it's by no means clear that publishers have digital rights. There's legal precedent on both sides of the issue of whether "to publish in book form" (standard language in older contracts) includes ebooks.

I'd advise you to check and see if an electronic edition of the book has been issued--and if not, to keep checking in case one shows up.

Anonymous said...

This question pertains to the topic, but is slightly different and may be difficult to answer. My book was published with a traditional small and inexperienced publisher. After the end of the contract, it was mutually agreed that the contract would be terminated and not renewed. I hadn't received royalty statements or payments for well over a year, though I had repeatedly requested the same. Regardless, my former publisher just redesigned their website - and right there, on the front page is my book, with an asterisk under it. The asterisk refers the visitor to a Previously Published reference. Does a publisher have the right to use a book that is no longer under their copyright or contract for promotional purposes? Currently, their books are very few (less than 3), so by including former publications in their books, they are making themselves look more established. I wonder if this is ethical or legal ... it is misleading. But it is also my book, and the rights have reverted back to me.

Anonymous said...

So I published a book in 2012 with of course, a money-sucking publisher who claimed they were a "traditional" publisher, and I was too young and naive to realize differently. Now, I want to completely rewrite that book that was published and go through a different publisher, but can't do that without terminating the contract first. The question is, is how do I do that? There is a termination clause in my contract, that states that the publisher or the author can terminate the contract at any time. Do I have to email a certain somebody or what? This may seem like a stupid question, but yeah I'm lost. Thanks in advance!

Victoria Strauss said...

Anonymous--

When a contract allows for author termination, there's usually language in the contract saying exactly how to go about it. However, if you like, I'll be glad to take a look at the contract and give you a more detailed opinion. Email me at beware [at] sfwa.org. All information shared with Writer Beware is held in confidence.

Anonymous said...

Same person from before. :) I went ahead and emailed you what it exactly said. Thank you for your help!

Anonymous said...

My Mom had a book published in 1996. She never got one royalty. She died in 2006, the book is out of print now. I would really love to have the copyrights. What do I do?

Victoria Strauss said...

Anonymous,

As I see it, you have two issues--getting the rights back, and ensuring that you own the copyright.

You'll need to resolve the copyright issue first, since you'll need to document that you're the owner in order to deal with the publisher. If your mother left you her estate, it probably included her copyright--but I'm not a lawyer so I'm really not certain of how this works. It probably would be a good idea to seek legal advice on this.

Once you've established your ownership, you'll need to contact the publisher. When a publisher declares a book out of print, that doesn't necessarily mean that rights automatically return to the copyright owner; the owner may have to go through ane additional process of formally requesting the return of rights.

If you can find your mother's publishing contract, check it to see what the rights reversion procedure is (for instance, sending the publisher a letter requesting that rights be reverted, after which the publisher has a period of time to either re-issue the book or return rights). Follow it precisely. Be sure to explain your ownership of copyright in your letter, so the publisher knows it can legally deal with you on rights issues.

If you can't find the contract, you'll need to get in touch with the publisher to find out what the proper procedure is.

If you have other questions, please email me: beware [at] sfwa.org.

robintidwell said...

I'm a small publisher. I terminated an author's contract two days ago. She's now posting in several places and using the term "dishonest publisher" and claiming she was "fired" for "asking a question."

The contracts were terminated because of a discussion in our private group about the amount invested in books. She claimed I was unprofessional, did nothing with her books, and spent too much money on the wrong things. She wanted to know how much I spent on everything and why. It wasn't just the questions, which were inappropriate anyway, but her constant negative attitude and false claims and serious lack of any marketing.

I should note, we are NOT a vanity press, our authors pay zero dollars to be published. It's not HER money at all.

So it's not always a publisher's fault when a contract is terminated.

In the meantime, I need to decide what, if anything, I can do to repair the damage and whether or not to post a rebuttal.

listenandbeheard said...

My problem is that my publisher is no more. My book was published in 1998 and I haven't been able to figure out who to contact about rights reversion. It's still available at B&N and other online outlets, so someone must be keeping the books...

Victoria Strauss said...

listenandbeheard, please contact me with more details, and I'll try to give you some advice. My email is beware [at] sfwa.org

Jolee Wilson said...

I am having issues with my publisher as well and I'm not sure what to do. My book has been in print and in e-book form for a little over two years, and I have yet to get any royalties. My publisher will not answer my emails, so when I call, I get the same story, 'Sure, we will send your royalty check ASAP.' To top it off, I have misplaced my copy of the contract, and my publisher has said the same thing concerning getting me a copy, 'Sure, we will send you a copy ASAP.' I want my rights back, and I'd like to go to another publisher, with a literary agent involved to help make sure I get a legit publisher this time, one who doesn't put me off and treat me as though I'm stupid. I've already written another book that is ready for submission, and have started a third, but I remember my contract states that I can't submit to another publisher unless my current publisher rejects it. In this case, should I get a lawyer involved? I'm tired of getting the run around.

Victoria Strauss said...

Jolee, yours is a tough situation with a lot of different factors, too complicated to address in a blog post comment. Please email me at beware [at] sfwa.org and I'll try to respond in more detail--also, I may already have info on your publisher, if you'll let me know its name.

Cecile Wardle said...

Hi. I had two books published by the same publisher. I signed and submitted my contracts before my husband and I found a scandalous articles about the publisher. Since it was too late to cancel the contracts as the books were on process to final stage of publication. When it was released in the market, the publisher won't tell me the exact number of copies sold. The publisher sends me a royal fee statement ($0.00 or 50cents)each year. My entire family were puzzled because they purchased copies of my books. But publisher told me either can't tell me or a zero sale. My only way out was to wait 7 years (contract expiration period). It was stated in both contracts that they're not publishing, re-printing, distributing, etc the said book(s) without my permission. However, despite what they stated in the contract, the publisher continued to re-printing and distribute copies of my books. I designed and layout everything in my book from cover-front and picture, contents and words. All the publisher did is to just to print out but still made a mistake which they edited. When my contract expired, they told me I can only get the right back of the text mode of my manuscript.My question is, do I have the right to have my book republish using the same title?

Victoria Strauss said...

Cecile,

Titles aren't protected by copyright, so you can use your same title.

As to your other issues, they're complicated--I'd need to know the name of the publisher and also to see your contract and the email they sent you about only being able to use the text. Contact me at beware [at] sfwa.org.

Anonymous said...

Hello all, I apologize if this question has been answered, though, I didn't see this exact scenario.

I have a friend that had a book contract. She was obligated to writing two books only. She went on to write three additional books with this publisher; however, none of them were under contract.

It appears that the publisher is pocketing more of the sales proceeds than they are supposed to, and continue to give her bogus reporting info (user created excel or word documents versus the Amazon report).

There are other issues, such as being difficult to contact, not providing paperbacks as promised, and an overall lack of professionalism.

My friend has another publisher that would love to sign her. Here's the catch...though she is no longer under any type of contract, the ISBN and copyright info is under the previous publishers name. She doesn't want to sign and promote a new book, for fear that her old book sales could increase. She doesn't want her old publisher to receive another dime. What are her options? Your advice is greatly appreciated.

Victoria Strauss said...

Anonymous,

If I'm understanding you right, your friend allowed this publisher to publish three of her books without signing a contract? Did she give them permission to publish with no contract, or did they just go ahead and do it without asking? Even if she did give permission, and the publisher holds copyright for the books that were under contract, I'm not sure how it can claim it holds copyright for books where no contract was signed. At any rate, if someone besides your friend holds copyright, those rights are lost to her and she can't re-publish, unless she somehow gets those rights back. Also, if the books--under contract or not--are still being actively sold by this publisher, no new publisher is going to want them. Publishers only want books whose rights are completely free and clear.

I think I must be missing something here; if not, this is a very strange story and something is very wrong. Please get in touch with me, or have your friend contact me: beware [at] sfwa.org .

Anonymous said...

What if a book contract states that "any change by publisher will not delay the publish date any more than one month without notification to the author" and the publisher violates that? This publisher left me hanging for months, ignoring the tentative publication date that was on the contract and never notifying me why the book wasn't being published. I was waiting for a second proof and that never happened. Publisher finally agreed to terminate and sent a signed termination contract which did not include the correct book title or author name as it appeared in the original book contract. He also back dated it. When I asked that he correct those two things before I sign, he became furious and said he had no intentions of publishing the book and that he didn't need a signed copy of the termination from me. He also agreed to take the book cover, description and my name which is listed as one of his authors off of his website, but he has not done so. In my last correspondence to him, I told him that the corrected and signed termination contract was necessary. If he chooses to do nothing, what are my rights and will I be able to submit my manuscript to another publisher without any ties to this one if I do not have a termination contract signed by both parties. I did apply for and receive book copyright before I ever signed with this publisher but the contract gives him exclusive rights to publish and sell it in print and e-book formats. As added info, this is a small, independent, royalty paying publisher.

Victoria Strauss said...

Anonymous--

Please contact me via email (beware [at] sfwa.org). I really can't give you any useful advice without seeing your contract and the termination notice you received. (BTW, a termination notice doesn't have to be signed by both parties--just by the publisher--but it does need to include correct information about the book.)

 
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