Getting rights back

Rhymes with Clue · Oct 4, 2012

Disclaimer: For the purposes of this, you can assume that I am, if not actually an idiot, then at the least a person who tends to do everything wrong, and go from there.

I published 4 mass-market paperbacks via Ballantine/Fawcett. The last one was published 10 years ago.

In my contract, Ballantine specifically retained electronic publishing rights, which were more of a buzzword back then than an actual Thing. Now they are a Thing, and reading over my contracts it looks like Ballantine has a perfect right to exploit this, but so far, it hasn't happened.

It looks to me like, for me to do it myself, I need to make sure I have my rights back. The contract says something like, if two years following publication the book is out of print, I can write to them and demand they either print a new edition or get my rights back--ALL my rights. This seems pretty straightforward. I write them, they have to reply within 90 days saying yes or no. They can hand the rights back right then, or they can say they'll do a new edition. If they say they'll do a new edition and they don't within 6 months, the rights revert to me.

Now at the time of this contract I had an agent, and it looks like as long as the contract is in force--i.e., until I get the rights back--or maybe even after--this is my agent. It does not name her by name, but by agency. Since then, she's changed agencies, that is, at the time she worked for one agency, now she has her own.

So this is probably a question I should put to her, which I would, except for the following: Around 2005 I sent her a proposal for two new works. She wasn't wild about either proposal but said, "Oh, well, go ahead and write the one you like best, send me fifty pages, I'm not wild about the idea but I've always loved everything you wrote so maybe I'll like the pages." And I never sent them. I don't know, I guess I needed unmitigated enthusiasm, or something. (I did, however, write them.)

In fact, actually, I never contacted my agent again, although I continued to get royalty statements, etc. Then I moved, and I never updated my address with her, so I ceased getting royalty statements.

This is why I'm afraid to approach her. I don't know whether to just write the publisher and send a cc to the original agency, cc my agent at her new agency, cc everybody, don't cc anyone at all, or just forget the whole thing. Or I could put the electronic version up on Kindle via Amazon and just assume that since these books are all pretty thoroughly out of print, I'm okay (see first paragraph of this).

Anyway, you can probably see why I don't want to contact my agent and have her do this thing. She's busy, it won't net her any more money, etc. She was a great agent, on the offhand chance that I can one day write something else I would like for her to sell it, so I really don't want to annoy her--but meanwhile I would really like to get these things published in ebook form, but I'm stuck. Ideally I would change my name, move to another country and start over, but that's not likely.

Any recommendations? Reasonable ones, that is.

leahzero · Oct 4, 2012

I can't help with the legal stuff, but I can help with this:

Rhymes with Clue said:
Or I could put the electronic version up on Kindle via Amazon and just assume that since these books are all pretty thoroughly out of print, I'm okay (see first paragraph of this).

Don't do it! You may be okay, but is it worth the risk if you're not? Do you really want to deal with your old publisher taking you to court? Make sure you have legal the right to self-publish this material before you do it.

Good luck. I'm sure the lawyerly types will be along soon to advise you in detail.

victoriastrauss · Oct 4, 2012

You MUST get your rights formally returned by the publisher before you can do anything with them yourself. This requires a reversion letter.

The first thing I'd suggest you do is to contact the agency that sold the books. If your agent-of-record clause in the contract names the agency rather than the individual agent, the agency is who the publisher will expect to hear from--not your original agent, since she's no longer with the agency. The agency owes you this duty, since your books put money in its pocket--even if you're not a currently active client.

Tell them that you want to revert rights to all your out of print books, and ask them to take care of this. I would suggest that you phone, rather than emailing, since emails can be ignored, or shuffled around without ever reaching a person who can do anything about them. On the phone, you can explain your issue to whoever answers, and ask to be transferred to the proper person.

This may or may not produce results. If you have an efficient agency with all the right contact names, they will take care of it and you'll have your rights back within weeks or months. If your agency is less efficient, you may have to do some followup nudges.

It's also possible, unfortunately, that since you're not a currently active client your request may be put so far on the back burner that you could be nudging forever without results. If that becomes apparent (if you nudge repeatedly without success, or if your initial attempt to contact the agency is brushed off, or you're told the proper person will call you back and no one ever does), you will have to demand reversion yourself.

This can be difficult, because big publishers' internal structures are complex and you have to contact just the right person or your request may be forever lost in a Kafkaesque labyrinth of bureaucracy. For you, this is complicated by the fact that Ballantine's parent, Random House, has internally re-organized itself several times since your last book was published. Generally speaking, though, you'll want to contact the publisher's Rights and Permissions department. Random House contact info is here. Again, I'd suggest you phone, rather than trying to email or fax. Call the publisher's general number and ask to be transferred to the Rights and Permissions department. You can then explain your issue, ask who the proper person is to contact, and once you have the right name and address, send your reversion request.

Here's a sample of a reversion request letter.

Hope this helps a bit.

- Victoria

Rhymes with Clue · Oct 4, 2012

Update:

Yes, THANKS, that did help a lot. Good information, and it sort of got me over the hump so I called the agency, and got a very helpful person.

He said what Random House is doing these days is offering to publish as an ebook and sending an amended contract, with the usual royalty being 25% of net. I don't know if that's a good deal or not--25% is certainly more than I got from the print books, but I have no idea what they're talking about in production costs. (I, meanwhile, have electronic copies of the books, and I have the copy edits, so I could turn them into ebooks without a lot of hassle or expense.)

At any rate the process has begun.

lauralam · Oct 4, 2012

25% is standard. However, if they're not going to do any marketing/push, then you might be better off getting your rights back and putting it up in ebook form yourself for a higher royalty rate. It's up to you, of course.

victoriastrauss · Oct 4, 2012

Publishers are eager to digitize their backlists, but they do nothing whatever to promote them. Your book will be digitized but it won't be marketed in any meaningful way. The benefit for the publisher is the long tail: lots of books selling a small number of copies can add up to decent income. For the individual author, the long tail has zero benefit.

I frankly think this is the worst of all worlds for a backlist book. You're pretty much in the same position as a self-published author, marketing- and discoverability-wise, yet you have less control and get less money per sale. Plus, you're tied to an exclusive contract.

Personally, I would prefer to revert my rights. If you like DIY, you can self-publish, which will give you more income (Amazon's KDP program pays 70%) and more control, and not tie you up for years contractually. If you don't like DIY (and plenty of people don't) you could try to re-sell the books to a reputable small press that would put a bit more effort behind them. There are also writers' cooperatives, like Book View Cafe, that specialize in re-issuing out of print books in digital editions.

You may decide that accepting Random House's offer is the way you want to go, but don't think that it's the only, or necessarily the best, way to go. And don't let them make you think that you have to accept their offer, or that you can't or shouldn't revert your rights. You have several options here--be sure you investigate them all before making up your mind.

- Victoria

Getting rights back

Rhymes with Clue

Trying to be mysterious

leahzero

The colors! THE COLORS!

victoriastrauss

Writer Beware Goddess

Rhymes with Clue

Trying to be mysterious

lauralam

Moonshade

victoriastrauss

Writer Beware Goddess