Re: PublishAmerica contract, item 24
Paragraph #24 of the PublishAmerica contract, its “reversion clause” (I hate having to call it that), is an especially nasty piece of work. Like
paragraph #9, its text has deliberately been made obscure in order to camouflage an unjustifiable rights grab that’s not related to the paragraph’s ostensible subject matter. But unlike paragraph #9, it does this by burying its rights grab in a heap of obsolete production terminology that’s guaranteed to be unfamiliar to anyone who hasn’t worked in book production for decades. Here’s the text from PA’s contract:
24. When in the judgement of the Publisher, the public demand for the work is no longer sufficient to warrant its continued manufacture, the Publisher may discontinue further manufacture and destroy any or all plates, books, sheets and electronic files without any liability in connection therewith to the Author. However, the Publisher agrees to notify the Author of such decision in writing, and will offer to transfer to the Author the work and its rights in the copyrights thereon, the plates (if any), the bound copies and sheet stock (if any) on the following terms F.O.B. point of shipment: the plates, at their value for old metal, the engravings (to be used only in the work) at one-half (1/2) their original cost, the bound stock at one-half (1/2) the list price, and the sheet stock at the cost of gathering, folding, sewing and preparing for shipment, all without royalties. In the latter event, unless the Author shall, within 30 days, accept said offer and pay the amount set forth in said writing, the Publisher may dispose of the work, copyrights, plates, books, sheets and other property without further liability for royalties or otherwise.
Pretty murky, right? Hang in there.
I can tell where this came from. PublishAmerica has based their construction of #24 on a paragraph they adapted from an old (
quite an old) publishing contract. It’s the only paragraph in their contract that’s based on this very old model. The rest are of recent origin.
The original paragraph which they adapted to their use concerned the arrangements for disposing of the remaining production materials and the leftover copies of a book at the point that its publisher has let it go out of print. This is completely inappropriate for PublishAmerica, which uses POD (print on demand) technology, and thus need never let a book go out of print unless the author demands it.
What’s even more bizarre is that this contractual language which PA appropriated assumes the use of bookmaking methods from the vanished era of linotypes, stereotypes, rotogravure, and all the other grimy hands-on technology of printing with hot lead type – which, depending on how you count it, is at minimum three full generations of printing technology removed from anything PA’s ever used. It’s as though CNN were broadcasting this evening’s news in Chaucer’s English.
However, they didn’t use the passage unaltered. There are bits of language in paragraph #24 which do
not date from the days of hot type. These, we must assume, are PublishAmerica’s own interpolations – and they concern a transfer of copyright from the author to PublishAmerica.
As I said in my
critique of paragraph #9,
”You want to talk about standard vs. nonstandard contracts? In a standard contract, grants of rights are up front, under a heading that says something like ‘GRANT’ or ‘GRANT OF RIGHTS’. Other subrights, licenses, etc., are in paragraphs with similarly appropriate headings. They are not
tucked into the latter portion of a paragraph about book promotion.” Neither, I will add, should they show up in a paragraph about the disposition of production materials at the point of reversion.
Moreover, a provision that effects a transfer of copyright should have the legal equivalent of flashing red lights and flag trucks fore and aft. Outright transfer of copyright isn't common in trade publishing. Most contracts involve a grant of certain rights for either a specified period of time, or until the book goes out of print. Copyright – that is, permanent ownership of the work – remains with the author. A full-scale transfer of the copyright of an original work is very rare, and is something a normal publishing contract would
never bury in a minor paragraph.
It turns out that when you remove everything from paragraph #24 that a standard publishing contract would never locate there -- that is, mentions of copyrights and royalties -- what you have is a nice coherent little paragraph about the disposition of production materials at the point of reversion. I can show you what it all means, but first I'm going to have to explain some history.
Way back when, we used to have to cast every letter of every word in molten metal before we could print it. Text was typed into a huge complicated moloch of a machine called a Linotype that lined up and justified a row of letter forms, then squirted molten lead into them to form a single line of type, called a slug. (That’s if you were lucky. Sometimes it squirted the operator.) When you’d typeset enough slugs to make a page, you assembled them tightly in a wooden form and pressed a layer of special heat-resistant papier-mache onto them to take an impression of the whole page. This papier-mache mould was used to cast a curved metal plate, which was then fastened to a rotary press and used to print copies on paper.
(Taking a mould of the set type and using it to make a curved plate that would fit onto a rotary press was called
stereotyping. And since you could take more than one mould from a page of set type, press syndicates got started that distributed content to smaller newspapers in the form of ready-made plates. Newsmen who wrote and typeset their own copy derogatorily referred to this syndicated material as
boilerplate. Now you know where both those terms come from. If you want to go three for three, you can probably figure out
typecasting on your own.)
Having to physically manufacture every page in metal before it could be printed made getting a book to press a major undertaking. After you’d done it you could keep the plates and print more pages from them later on, but it still took a lot of work to get them onto the presses. Because getting everything ready to print took so much work, once the presses were rolling it was common for publishers to print a great many more pages than they had immediate use for. They'd set these aside for later. Instead of sending a title back to press when they ran low on copies, they’d collate, fold, sew, and bind some of these pre-printed loose sheets.
But no matter how cleverly the house managed its production and warehousing, it still cost something to keep a book available and in print. Eventually the day would come when the publisher decided that the income from that book’s sales no longer justified the cost of keeping it in the backlist. The book would be allowed to go out of print, at which point the rights would automatically revert to the author.
Meanwhile, there was the question of what would happen to the stored metal printing plates, the pre-printed loose pages, and the leftover finished copies of the book. (There are always leftovers.) This is where our paragraph comes into the story.
What follows is my speculative reconstruction of the original paragraph, with commentary:
When in the judgement of the Publisher, the public demand for the work is no longer sufficient to warrant its continued manufacture, the Publisher may discontinue further manufacture and destroy any or all plates, books, or sheets,
Plates are the metal plates you print from. Books are finished bound copies. Sheets are printed unbound pages.
without any liability in connection therewith to the Author. However, the Publisher agrees to notify the Author of such decision in writing, and will offer to transfer to the Author the plates (if any), the bound copies and sheet stock (if any) on the following terms F.O.B. point of shipment:
F.O.B. means “freight on board” -- this is going to be sent via an industrial-strength freight carrier. “Point of shipment” means you have to come down to the depot to get it.
the plates, at their value for old metal, the engravings (to be used only in the work) at one-half (1/2) their original cost,
I believe that what this means is that the author gets the engraved metal plates from which the illustrations are printed, and can use them to print more books; but second-use rights are still held by the artist, so the engravings may not be used for some other purpose.
the bound stock at one-half (1/2) the list price,
”Bound stock” means finished copies of the books. This is something we still do. When a book is going to be remaindered, we first offer to sell those copies to the author at a reduced rate
and the sheet stock at the cost of gathering, folding, sewing and preparing for shipment.
Here my expertise is a trifle shaky. I believe it means that you can have the extra printed pages, but only if you’ll pay the cost of having them turned into F&Gs – folded & gathered sixteen-page signatures, suitable for binding.
In the latter event, unless the Author shall, within 30 days, accept said offer and pay the amount set forth in said writing, the Publisher may dispose of the plates, books, sheets and other property without further liability to the author.
If within thirty days the author doesn’t say “Yes, I want all that stuff,” and send a check or money order to cover the costs, the publisher can sell it all as wastepaper and scrap metal.
Thus the reconstructed original: an interesting historical sidelight, though it wasn’t the
commonest way to handle these things, and I can’t imagine many authors exercised the option to buy their plates. Anyway, anyway. I won’t say that to modern readers, it reads like Greek; these days, more people can read Greek than could decipher that paragraph.
Now here’s PublishAmerica’s version again, this time with their presumed changes set in boldface:
24. When in the judgement of the Publisher, the public demand for the work is no longer sufficient to warrant its continued manufacture, the Publisher may discontinue further manufacture and destroy any or all plates, books, [and] sheets and electronic files without any liability in connection therewith to the Author. However, the Publisher agrees to notify the Author of such decision in writing, and will offer to transfer to the Author the work and its rights in the copyrights thereon, the plates (if any), the bound copies and sheet stock (if any) on the following terms F.O.B. point of shipment: the plates, at their value for old metal, the engravings (to be used only in the work) at one-half (1/2) their original cost, the bound stock at one-half (1/2) the list price, and the sheet stock at the cost of gathering, folding, sewing and preparing for shipment, all without royalties. In the latter event, unless the Author shall, within 30 days, accept said offer and pay the amount set forth in said writing, the Publisher may dispose of the work, copyrights, plates, books, sheets and other property without further liability for royalties or otherwise.
Cute, eh? Transfers of copyright, red in tooth and claw, lurking amidst the thickets of sheet stock.
So, what’s the real point of #24? At first you might assume it’s to grab off ownership of a bunch of copyrights that should properly belong to the books’ authors. The trouble with that theory is, the only real commercial value most PA titles have is that you can use them to squeeze money out of their authors. I don’t doubt for a minute that PublishAmerica would alienate their authors’ copyrights, assuming they thought they could make money out of it; but the only thing they could do with outright ownership of a bunch of their titles would be to sell copies of them, and we already know they’re not interested in that line of work.
I believe the point of paragraph #24 is to cause the author who’s seeking a reversion to go into a state of panic. You know that cartoon about what you say vs. what your dog hears? The one where the guy is saying all that stuff to his dog Ginger, only what the dog’s hearing is
”blah blah blah blah GINGER blah blah GINGER blah blah blah…”? Same effect here:
”Obscure production-speak obscure obscure production obscure YOU WILL LOSE YOUR COPYRIGHT obscure production production production obscure.” Gets your attention, that does. You can't tell what-all is going on; you only know that it somehow threatens to deprive you of ownership of your book.
And what’s the point of sending you into a panic? It’s to soften you up for the “49 copies” scam. It goes like this: PublishAmerica doesn't have a proper reversion clause, but that doesn't mean they won't revert books. As has often been observed, PA is good at making nasty-sounding legal threats, but they never follow through on their offers to fight, because they don’t want to wind up in court giving sworn testimony about their business methods. If you demand your book back, they’ll give it to you -- unless they’re personally pissed at you (usually for criticizing them in public), in which case they’ll drag out the process as long as possible, and then give it back to you anyway. (If they’re really pissed at you, they’ll simply stop selling your book. Since their contract has a seven-year term, and no clause reverting the book if it goes out of print, at that point the only thing you can do is try to get it back so you can take it elsewhere.)
However! Before they’ll revert your book, they say, under the provisions of paragraph #24, you’ll have to buy up their overstocks. Remarkably, this overstock quantity almost always turns out to be
49 copies, except when it’s more; which means you’ll be paying at least a thousand dollars to ransom your book. A lot of people would undoubtedly balk at that -- if there weren’t a paragraph in their contract that threatens them with loss of their copyright if they don't pay up.
It’s a scam. PublishAmerica shouldn’t have overstocks. They’re a POD publisher. Furthermore, they’re often tardy or a no-show about providing books ordered in any quantity. There’ve been repeated sightings of mournful PA authors who’ve gotten some local bookstore to agree to a signing, and who then spend weeks trying to get PA to ship 25 prepaid copies, none of which arrive in time for the signing, Nevertheless, when authors try to get a reversion, there will turn out to be 49 overstock copies lying around at PA.
Why 49? Because that's a major price breakpoint for short-run printing and binding operations. Those copies cost PA even less than their usual Lightning Press per-unit rate. When you ask for a reversion, PublishAmerica sends in the order to have your overstocks printed.
As Victoria Strauss
once posted on this subject:
It's pretty clear what's being got at here: it's a way to make money on the back end.
The PA contract is nonstandard in a number of respects. The out of print/reversion clause is just one example. Like some other parts of the contract, it seems to be based at least in part on out-of-date contract language (hence the stuff about plates and engravings), but the most important thing to note about the clause is that it ties rights reversion to author payments:
"...unless the author shall, within 30 days, accept said offer and pay the amount set forth in said writing, the Publisher may dispose of the work, COPYRIGHTS [my emphasis], plates, books, sheets and other property without further liability for royalties or otherwise."
PA appears to interpret this clause as meaning the author must pay for "overstock". I've received a number of reports from authors who, on being released from their contracts, were asked to pay for books in stock (in some cases, a lot more than just 49 books). In one case where the author refused to pay, PA interpreted the sentence quoted above to mean that it retained the publishing rights granted in the contract. Now, you could certainly argue that the sentence doesn't mean this at all, since "rights" and "copyright" are not the same thing, and PA never takes possession of your copyright. However, you might have to hire a lawyer in order to do so.
I don't know of any commercial publisher that ties rights reversion to author payments. The author may be offered the chance to purchase overstock and other materials at a reduced rate, but if they don't, it has no bearing on whether or not they get their publishing rights back.
You can find more about PublishAmerica’s profit margins
here, and at a great many other sites on the web. These are not the good guys.