As a publishing lawyer, I often hear from authors hoping to terminate old (or unfortunate) publishing contracts and obtain a reversion of rights to their works.
Rights reversion is tricky, especially when the contract doesn’t give the author the right to terminate without the publisher’s agreement or approval. However, it’s important for authors to know their rights (and options) when it comes to requesting contract termination and a reversion of their rights to published works.
Here are the steps an author should follow to try and obtain a reversion of rights from a traditional publishing house.
Step 1: Review the contract.
Most publishing contracts contain language that controls when and how the contract can be terminated (and rights reverted), and by whom.
If the contract allows you to terminate, follow the instructions in the contract to request reversion. The process normally requires the author to send a written notice to the publisher (often, by certified mail) stating the reasons for termination and reversion. Comply with the contract terms exactly. If you have questions, don’t understand the contract, or can’t tell if reversion is permitted, consult a publishing lawyer (or agent).
Step 2: Ask the publisher to agree to a reversion.
If the contract doesn’t give you the right to request reversion, or if your current situation doesn’t meet the contract’s requirements for termination, you can still ask the publisher to agree to terminate the contract and revert your rights. Legally, the parties to a contract can always terminate the agreement by mutual agreement, even if the contract doesn’t say so.
Some publishers will agree to terminate a contract and revert the rights to the author if sales have dropped so low that keeping the work in print becomes a burden. However, the publisher has no obligation to agree unless the contract requires it, so be sure your termination request is polite and professional—and be prepared for the fact that the publisher may exercise its right to say no.
Step 3: Consult a publishing lawyer.
If the contract doesn’t grant you termination rights and the publisher refuses a polite request for termination, consult an attorney for an evaluation of your individual rights and obligations under the contract.
However, in most cases the author’s right to terminate a contract and obtain a reversion of publishing rights is controlled—and limited—by the contract language.
If the contract doesn’t give you termination rights, and the publisher hasn’t violated the agreement, you may not be able to force termination or obtain a reversion of rights—at least for the moment.
Step 4: In future contracts, insist on unilateral termination rights and out-of-print clauses tied to royalty-bearing sales.
This doesn’t solve the problem with your old agreement, but it helps ensure you don’t end up in this situation again with another work.
Make sure your future publishing agreements contain:
- A unilateral right for you (the author) to terminate the contract if the work goes “out of print” and
- Language defining “out of print” status to a specified number of royalty-bearing sales within a stated period. (For example: “the Work will be “out of print” if Publisher fails to sell at least 250 royalty-bearing copies of the Work in any twelve consecutive months during the term of this agreement.”)
Sometimes the publisher may require an additional 6-12 months to increase sales and return the work to “in print” status before the author can terminate. Some version of that is fairly standard.
Giving the author the right to terminate the contract if the work goes out of print (as measured by sales numbers) makes the contract more balanced and stops the publisher from claiming the work is still “in print” as long as the ebook is available for sale.
Unfortunately, once a contract is signed, an author’s rights are generally limited by the contract terms (unless the publisher breaches the contract or agrees to termination).
When it comes to publishing contracts, the best defense is a good offense—so negotiate for fair and effective termination rights before you sign.
Do you have additional questions about a reversion of rights? Other contract issues you’d like explained in a future post?
Susan Spann is a California transactional attorney whose practice focuses on publishing law and business, and is also the author of the Hiro Hattori (Shinobi) mysteries, featuring ninja detective Hiro Hattori and Portuguese Jesuit Father Mateo. Her fourth novel, THE NINJA’S DAUGHTER, released from Seventh Street Books in August 2016. Susan was the Rocky Mountain Fiction Writers’ 2015 Writer of the Year, and when not writing or practicing law, she raises seahorses and rare corals in her marine aquarium.
Find her online at http://www.SusanSpann.com, on Twitter (@SusanSpann), and on Facebook (/SusanSpannBooks).