How to Request Rights Reversion From Your Publisher

Posted by Victoria Strauss for Writer Beware

Partly in connection with the controversy surrounding troubled publisher Ellora's Cave, I've been getting questions about how to go about requesting rights reversion from one's publisher.

There's no official format for a rights reversion request, and if you do a websearch on "rights reversion request" you can find various pieces of advice from authors and others. Here's the procedure I'd suggest. (Note that I'm not a lawyer, so this is not legal advice.)

First of all, if you have a competent agent, ask your agent to handle it. Especially if you're with a larger publisher, your agent is more likely to know exactly whom to contact, and in a better position to push for a response.

If you don't have an agent, or if your agent is not very competent or not very responsive:

1. Look through your contract to find the rights reversion or termination language. Sometimes this is a separate clause; sometimes it's included in other clauses. See if there are stipulations for when and how you can request your rights back. For example, a book may become eligible for rights reversion once sales numbers or sales income fall below a stated minimum.

The ideal reversion language is precise ("Fewer than 100 copies sold in the previous 12 consecutive months") and makes reversion automatic on request, once stipulations are fulfilled. Unfortunately, reversion language is often far from ideal. Your contract may impose a blackout period (you can't request reversion until X amount of time after your pub date), a waiting period after the reversion request (the publisher has X number of months to comply, during which time your book remains on sale), or provide the publisher with an escape mechanism (it doesn't have to revert if it publishes or licenses a new edition within 6 months of your request).

Worse, your contract may not include any objective standards for termination and reversion, leaving the decision entirely to the publisher's discretion; or it may include antiquated standards ("The book shall not be considered out of print as long as it is available for sale through the regular channels of the book trade"--meaningful in the days when books were physical objects only and print runs could be exhausted, but useless for today's digital reality).

It's also possible that your contract may not include any reversion language at all. This is often the case with limited-term contracts, so if your contract is one of those, you may just have to wait things out. Unfortunately, I've also seen life-of-copyright contracts with no reversion language. This is a big red flag: a life-of copyright contract should always be balanced with precise reversion language.

2. Begin your reversion request by stating your name, the title(s) of your book(s), your pub date(s), and your contract signing date(s). I don't think there's any need to create separate requests if you're requesting reversion on more than one book; but there are those who disagree.

3. If you do meet your contract's reversion stipulations, indicate how you do ("Between August 1, 2013 and July 31, 2014, Title X sold 98 copies") and state that per the provisions of your contract, you're requesting that your rights be reverted to you. If the contract provides a specific procedure for making the reversion request, follow this exactly.

4. If you don't meet your contract's reversion stipulations, if reversion is at the publisher's discretion, or if your contract has no reversion language, simply request that the publisher terminate the contract and return your rights to you. If there's an objective reason you can cite--low sales, for instance, or your own inability to promote the book--do so, even if those reasons are not mentioned in the contract as a condition of reversion.

5. DO: be polite, businesslike, and succinct.

6. DON'T: mention the problems the publisher may be having, the problems you've had with the publisher, problems other authors have had, online chatter, news coverage, lawsuits, or anything else negative. As much as you may be tempted to vent your anger, resentment, or fear, rubbing the publisher's nose in its own mistakes amd failures will alienate it, and might cause it to decide to punish you by refusing your request or just refusing to respond. Again: keep it professional and businesslike.

7. Request that the publisher provide you with a reversion letter. Certain contract provisions (such as the author's warranties) and any outstanding third-party licenses will survive contract termination. Also, publishers typically claim copyright on cover art and on a book's interior format (i.e., you couldn't just re-publish a scanned version of the book), and the right to sell off any printed copies that exist at the time of reversion (with royalties going to you as usual). Some publishers are starting to claim copyright on metadata (which they define not just as ISBNs and catalog data, but back cover copy and advertising copy).

I've also seen publishers claim copyright on editing (which means they'd revert rights only to the originally-submitted manuscript). This is ridiculous and unprofessional. For one thing, it provides no benefit to the publisher--what difference does it make if an author re-publishes the final version of a book from which the publisher has already received the first-rights benefit? For another, if edits are eligible for copyright at all, copyright would belong to the editor, not the publisher. If you find a copyright claim on editing in a publishing contract, consider it a red flag. If the publisher makes this claim without a contractual basis--as some publishers do--feel free to ignore it.

To give you an idea of what an official reversion letter looks like, here's a screenshot of one of mine.



8. If the publisher registered your copyright, ask for the original certificate of copyright. Smaller publishers often don't register authors' copyrights--again, check your contract, and double-check by searching on your book at the US Copyright Office's Copyright Catalog.

9. Send the request by email and, if you have the publisher's physical address, by snail mail, return receipt requested.

Hopefully your publisher will comply with your reversion request. But there are many ways in which a publisher can stall or dodge, from claiming that your records are wrong to simply not responding. If that happens, there's not much you can do, apart from being persistent, or deciding to take legal action--though that's an expensive option.

One last thing: a publisher should not put a price on rights reversion. Charging a fee for reversion or contract termination is a nasty way for a publisher to make a quick buck as a writer goes out the door. A termination fee in a publishing contract is a red flag (for more on why, see my blog post). And attempting to levy a fee that's not included in the contract is truly disgraceful.

6 comments to How to Request Rights Reversion From Your Publisher

  • Victoria Strauss

    Lawrence, I like your suggested language–it’s much more thorough and specific than any I’ve found online. Might you consider putting together an article for the Writer Beware blog based on our exchange here? With so many self-publishers hiring editors, I think this is an issue of real concern and a topic that would be very useful for my readers. I can’t offer payment, but I’ll give you a byline and links to your website, social media, etc. Contact me by email if you’re interested: beware [at] sfwa.org. Either way, thanks for an interesting “conversation.”

  • Occasionally editors do add whole paragraphs or scenes. This doesn’t happen too often, but editors may also substantially change the wording of a paragraph or scene so that the idea (which is non-copyrightable) remains the same, but the expression really comes from the editor. I thought about this in drafting a contract two days ago and came up with this as the Ownership piece (a statement of intent + a safety clause):

    3. Ownership.

    a. As between AUTHOR and EDITOR, AUTHOR shall at all times be and remain the sole owner of all right, title and interest in and to the Book and the result of the Edits, i.e., the final “Edited Book.” Only AUTHOR shall have the right to register the copyright in the Edited Book and s/he shall have the right to do so under her/his name as sole copyright claimant and sole author of the Edited Book. AUTHOR and EDITOR agree that it is not their intent to create a joint work of authorship.

    b. In the event that a United States court of competent jurisdiction determines that, notwithstanding paragraph 3.a above, (i) any Edit is independently copyrightable, and (ii) the Edited Book is a joint work of authorship, then (A) EDITOR hereby assigns and transfers to AUTHOR, irrevocably and in perpetuity, all such EDITS from inception, together with all rights therein and thereto and the proceeds derived therefrom or in connection therewith; and (B) in the event of any reversion of copyright to EDITOR as joint author, EDITOR shall be entitled to an equitable share of income earned from the Book following such reversion, but not more than five percent (5%) thereof.

    Your comments/feedback are greatly appreciated.

  • Victoria Strauss

    Lawrence–

    I think your comment points up the importance of making sure that any agreement between an editor and an author (if the author is hiring the editor him/herself) includes language ensuring that work done by the editor becomes the property of the author. For instance:

    6. WORK PRODUCT OWNERSHIP
    Any copyrightable works, ideas, or other information (collectively known as Work Product) developed in whole or in part by the Editor in connection with services provided shall be the product of the Client.

    Here’s the contract I borrowed this from.

    What would determine copyrightable matter in editing? Most editing is done by the author based on the editor’s comments and suggestions. Line editing is more hands-on, but it’s still basically manipulation of the author’s own text. I suppose if an editor added whole paragraphs or scenes, there might be more of an argument for co-authorship–but how often does this happen?

  • Victoria Strauss

    Thank you, Lawrence–that is very helpful. I thought there was some legal precedent in the author’s favor, but it’s been a long time since I read about it and I couldn’t find any references, so I didn’t mention it.

  • I kind of have an answer to this, but not entirely satisfactory. Various courts have ruled that the author retains sole authorship absent evidence that both the author and the editor intended to be joint authors. Here’s the rub: in evaluating the intent of the parties, the courts will look to whether the author retains final approval of the manuscript, how authorship is credited, in whose name the Copyright Office registration was filed, and agreements and other communications between the parties. So there’s a clear risk where the author is not vigilant and aware of these issues. Kudos heaped on an editor by an author can work against the author’s interest in the long run, among other things…

  • Victoria – your post raises an interesting issue which I haven’t seen discussed anywhere. Insofar as an editor, hired as an independent contractor, makes copyrightable edits of an author’s text, s/he likely becomes a co-author. If the author and editor enter into an agreement whereby the editor relinquishes all claims to the work, s/he can, after 35 years, serve a reversion notice on the author. Then the fun begins: as a co-author, the editor can sell and otherwise engage in commercial exploitation of the book. But what percentage of the income is the editor entitled to? This is a question not resolved by the Copyright Act.

    The situation is somewhat different where the editor works for the publisher of the book. Assuming that the editor is the employee of the publisher and has work for hire language in his or her contract, it is the publisher, not the editor, who becomes the co-author of the edited book (again, assuming that the edits contain copyrightable matter). When the author serves a reversion notice, does the publisher’s right then continue? It would appear to be the case — and again, what percentage the publisher would own as “editor” of the work isn’t addressed in the law.

    Is anyone thinking this problem through? I would love to hear others’ thoughts on this.

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