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December 3, 2014

Don't Do This: Wrong Ways to Try and Escape Your Deadbeat Publisher

Posted by Victoria Strauss for Writer Beware

The other day, I received this email:
Dear Writer Beware,

A couple of years ago, I published my mystery novel with [insert name of well-known deadbeat publisher here]. My contract won't expire for several more years, but I'm very unhappy with [deadbeat publisher] and would like to get out from under it. Can I change my title and publish on Amazon and hope [deadbeat publisher] won't see it?
I often receive such questions from authors who've tried and failed to get their rights back from their scammy or incompetent publishers, and are desperate to publish their books somewhere else. Can I change my title? Or the names of all the characters? Move the setting to a different country? Alter 10% of the book and legally make it a new work? Would my deadbeat publisher notice? Would it sue me?

In many cases, the answer to those last two questions is "very likely not." The odds that an author mill pumping out hundreds of books a year with minimal staff and attention would realize you'd re-published your work, or that an amateur small press struggling to stay afloat would have the resources to bring legal action against you, are probably pretty slim.

There's still a risk, though. And even if there weren't, these are still the wrong ways to escape a bad contract or a bad publisher. Here's why.

1. Traditional publishers want exclusive publishing rights, and their contracts require you to warrant that you are fully empowered to grant them. But if you're already contracted to another publisher, you cannot grant exclusive rights to someone else (regardless of any revision you may do--see #3 below). A new publisher won't want your book under those conditions--and signing a new publishing contract without disclosing that your rights are already encumbered would constitute fraud.

What if your old publisher was some super-obscure micropress that barely even managed to get your book on Amazon? Or went out of business without ever publishing? You may be able to make a convincing argument that your rights have returned to you if you can definitively show that your old publisher is out of business. Don't try and fool a new publisher, though--it's better to tell the truth and try to work things out than to lie and hope you won't be discovered. The Internet is forever: if your book was ever on sale, there's a record of it somewhere. A new publisher will not be pleased to learn that you haven't been completely candid.

(As a corollary, if your publisher has gone into bankruptcy or insolvency, do not assume that your rights have automatically reverted, regardless of what your contract says. Publishing contracts are assets that can be sold to pay creditors, and for that reason, courts don't generally honor bankruptcy and insolvency clauses.)

2. Unlike traditional publishers, self-publishing platforms only want non-exclusive rights. But they, too, require you to warrant that you are fully empowered to grant those rights--and if you're bound to an exclusive publishing contract, you can't do that.

 For instance, here's the relevant language from Kindle Direct Publishing Terms of Service (my bolding):
5.8 Representations, Warranties and Indemnities. You represent and warrant that: (a) you have the full right, power and authority to enter into and fully perform this Agreement and will comply with the terms of this Agreement; (b) prior to you or your designee's delivery of any content, you will have obtained all rights that are necessary for the exercise the rights granted under this Agreement; (c) neither the exercise of the rights authorized under this Agreement nor any materials embodied in the content nor its sale or distribution as authorized in this Agreement will violate or infringe upon the intellectual property, proprietary or other rights of any person or entity, including, without limitation, contractual rights, copyrights, trademarks, common law rights, rights of publicity, or privacy, or moral rights.
And here's Smashwords (again, my bolding):
9a. By submitting Your Work to Smashwords for publication, You, the Author or the Author you represent (if you are an Agent or Publisher) author’s Publisher or Agent or Distributor, warrant and represent that the work is complete and the author:

• is the only author of the Work;
• is the sole owner of the rights herein granted;
has not assigned, pledged, or encumbered such rights or have not entered into any agreement which would conflict with the rights granted to Smashwords herein; and agrees not to do any of the aforementioned without first unpublishing the work at Smashwords
• has full right, power, and authority to enter into this Agreement and to grant the rights granted herein.
Just about any self-publishing platform--whether reputable or not--has similar terms. What happens if you breach them? Potentially, oblivion. All self-publishing platforms reserve the right to terminate your account and/or remove your work from sale if you breach your warranties (or any of their guidelines).

Don't assume they won't find out. Amazon, for instance, scours KDP for plagiarism; I've heard from authors whose legitimately re-published backlist works were removed from sale because anti-plagiarism algorithms tagged the original versions.

3. The "change 10% and legally make it a new work" thing is a common trope, but it is a myth. Ditto for changing all the characters'  names, or moving the book to a new setting. There's no legal standard for how much, or how little, of a book you can alter or revise to transform it sufficiently to create a new copyright.

Bottom line: there are no shortcuts or workarounds to rights reversion--and reverting rights is essential if you want to get out from under a deadbeat publisher and give your book new life somewhere else.

I've written some posts that may help:

How to request rights reversion from your publisher.

Getting out of your book contract (maybe).

3 comments :

steeleweed said...

Many [naive] years ago, before the 'Net really got started and I could follow this site, I cut a deal with a vanity press: Northwest Publishing, in Utah. As noted here & elsewhere, they went belly up and I believe to prison for fraud. Their accounts were in such bad shape the bankruptcy referees couldn't even determine who had been defrauded, how and to what extent. Since the deal was a 'vanity' publish and never saw the light of day, I simply assumed I had full rights. I later did significant editing and light rewrite, then put it out for Kindle (with a different title).

I did see it on Amazon as a paperback 'not available' and I commented with the info above.

Question: Is my ownership of copyright good?

Victoria Strauss said...

Steeleweed,

The pedant in me compels me to say that I don't think Northwest required a transfer of copyright, so your ownership of copyright was always good. It was just your rights (conferred on you by your ownership of copyright) that you signed away.

At any rate...I believe that the bankruptcy trustee returned rights to all Northwest authors. Even if he or she didn't, though, you could certainly prove that the company is dead and gone--so I think you're on safe ground with your re-publication.

G. B. Miller said...

I made sure that when I got the rights back to my first book from my publisher (we parted on good terms) and self-published it on both Smashwords and CreateSpace that a note was installed on the copyright page that the book was previously published under the old title.

And when I had published a short story trilogy through Smashwords, I checked with them to find out what kind of note I should insert as the stories were all previously published.

 
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