AND PUTS MANY OTHERS ON NOTICE”

From Rick:

That’s not a headline we’d ever expect to see.

Yet, the strange thing is that this event has actually happened numerous times. For those not familiar with how many traditional publishing contracts work, let me explain elucidate the matter.

With the possible exception of the music industry, no other industry functions like the publishing industry where an author dangles his work in front of the various Deities of Publishing, hoping one of them considers it worthy enough to be offered a contract. And by signing this contract the author will give up most (or all) of the rights to his work and be given little or no say in what happens to it after that.

Once the contract is signed, there is almost no way to get out of it. Not even death suffices because the contracts are binding through the author’s estate and all of his heirs and heirs-to-be. Or if there is an escape clause, it will likely come with an extreme penalty. I have heard tales of it costing as much or more to buy back the rights than the author made on the book.

One final out may exist: going out of print. But this is not an out unless the contract clearly defines what out-of-print means and specifies the conditions under which rights revert to the author. One condition might be that there are not enough copies available to fulfill the current demand. In other words, if copies are available to readers somewhere but the demand is less than that number, the book may be considered still in print. Further, the contract must specify that being out-of-print is a condition under which the author may get his rights back. The contract may require a period of time for being out-of-print, and the publisher may have the option to bring it back into print, thus making the reversion of rights impossible. E-books present a special problem because–in theory–an e-book is never out of print as long as it’s available for purchase or download on some server somewhere. The author is totally screwed unless the publisher decides to play nice, as some have.

However, on the publisher’s side of the jail cell, multiple outs exist, most at the publisher’s whim. The contract may be canceled by the publisher if the author fails to deliver a completed or revised manuscript on time. Though not covered directly in the contract, uncooperative or contentious authors may find their book declared “unpublishable.”

What’s particularly egregious about this little gem of an out for the publisher is that no clear definition of unpublishable is given. It’s at the publisher’s sole discretion. On the surface, one would it simply means that a manuscript poorly written, but that’s a misconception. The publisher’s definition is something like, “we no longer want to publish it, so for us it’s unpublishable.” Aside from bad behavior on the author’s part, the publisher may use this option if it decides that the winds of change in the market are blowing in a different direction and that your book (in their opinion) doesn’t have the same market potential it did when they agreed to publish it. They can deem it unpublishable, cancel the contract, and you’re out in the street with it. If they’ve already given you part of the agreed upon advance, you probably get to keep it as long as you haven’t violated any part of the contract and the decision was purely theirs. Even if you get to keep the money, you’re still left with starting over to find a publisher.

Naturally, if the advance was a sizeable one, they’re not likely to pull this prank. But if they wanted to, their lawyers would find a way to make things work against you. If you learn nothing else from this blog post, remember at all times that publishing contracts are seldom written with the author’s best interests at heart. Exceptions exist generally with smaller publishers where no advances are in play. Given this information, we can understand how PUBLISHER FIRES AUTHOR happens.

Another ugly side of publishing is what happens to your work if the publisher goes out of business. Even if your contract has a clause that says the rights revert to you in that case, there may be legal issues working against you. When a publisher goes bankrupt, its assets could be frozen and your manuscript considered part of the publisher’s assets. Your book could be in limbo until the courts decide whether your work has any value in the settlements.

I have been on the receiving end of both the out-of-print situation and the out-of-nowhere-canceled contract. In both cases, I found a new home for the two novels. The experiences taught me never to put myself in such restrictive situations again.

Prior to the rise of indie-publishing, the only people who heard about these matters were other authors. Getting dropped by a publisher–unless the author was famous–was not front-page news except in Internet chat groups and blogs. It didn’t matter to the general public.

The rise of indie publishing has brought many of these secrets to light and provided authors with viable alternatives to these unscrupulous principles that gave authors no choice if they wanted to be published. We’re seeing major authors delving into indie publishing and sometimes turning down major publishing contracts. For the first time in decades, traditional publishing has been shaken to its core. What will happen next is up in the air, but many agree that publishing will never return to the way it was. The best part is that readers are finding more options as well. Good books, previously repressed because no publisher saw sufficient market potential in them, are becoming available, and that’s a good thing fro authors and readers both.

–Rick

Read these two articles below from Kris Rusch for additional insights into the publishing industry. You’ll find them as enlightening.

Kris Rusch: Believe in Yourself

Kris Rusch: Respect