Rights Grab

The Authors Guild is warning authors about new language in contracts from Simon & Schuster that amounts to an enormous rights grab. The complete text of the Guild release follows after the jump.

Simon & Schuster is irked that we went public with our information about their unannounced new contract language. They’ve sent a release (you can read it below) accusing us of “perpetrat[ing] serious misinformation.”

That’s a heavy charge, so we went back and double-checked. We stand by every word of our statement.

Simon & Schuster’s release pretends that the argument concerns “print on demand.” That isn’t the issue. We like print on demand: we encourage publishers to sell books in every permissible way. You wouldn’t know it from reading its release, but Simon & Schuster already has the rights – as they have for years in their standard contract – to take advantage of print on demand and e-book technologies.

The issue is what happens when a book goes out of print, when the publisher is no longer selling it in meaningful numbers. Traditionally, rights then revert at the request of the author, who often is able to give the book a new life elsewhere. Simon & Schuster is trying to change the rules of the industry so that they never have to admit that a book is out of print.

We meant what we said in our press release and our alert to members:

1. Simon & Schuster’s new contract would indeed allow it to retain exclusive rights to a book even if it were no longer in print. Simon & Schuster’s contract says, “The Work shall not be deemed out of print as long as it is available in any U.S. trade edition, including electronic editions.” Having a book available for sale in some database – without the obligation to sell a single copy – is not keeping a book “in print” as common sense and the industry have defined that term.

2. Simon & Schuster would, under its new contract, be empowered to exclusively control your rights even if your books aren’t available for sale through traditional bookstores. E-book availability (read any good e-books lately?) would be enough to fulfill Simon & Schuster’s contractual commitments under its interpretation of “in print.” Roy Blount is plainly right, this contract would allow Simon & Schuster to squirrel away rights.

3. Simon & Schuster’s press release avowals about its promotional efforts as it pursues “incremental income” for backlist titles are not legally binding. Simon & Schuster goes on at some length about efforts to market backlist titles including “regularly review[ing] inventory opportunities with all our accounts” and engaging in the “distribution of online assets (cover, bios, synopses, chapters) and data feeds about basic information” on backlist titles to retailers. Whatever the merit of these efforts, Simon & Schuster carefully avoids committing to them on behalf of authors with books relegated to the backlist.

4. Simon & Schuster’s efforts to alter the true core deal of a trade book contract – that a publisher controls the right to sell an author’s book only so long as the publisher effectively exploits that right – demanded exposure. Agents reported to us that Simon & Schuster had slipped the change into its contracts without alerting agents to the alteration, which was quite subtle and easily missed. Agents also reported that when they discovered the change and questioned the publisher about it, Simon & Schuster played hardball, saying the clause was non-negotiable and wouldn’t be discussed. In its release, Simon & Schuster seems miffed that we didn’t discuss their new contractual language with them before exposing it to sunlight. Engaging in discussions with a conglomerate playing hardball while authors may have been unwittingly signing rights away would, in our view, have been irresponsible.

We welcome and will take Simon & Schuster up on its offer to discuss this matter. We hope to report soon that it has rejoined the ranks of publishers who behave as responsible stewards of their authors’ copyrights.

In the meantime, if you have an offer from Simon & Schuster, remember that the publisher has now said it will negotiate this clause on a book-by-book basis. If you’re fortunate, Simon & Schuster will offer you a reasonable out-of-print clause. (Feel free to discuss this with us or talk to your agent about the adequacy of the clause.) If not, it’s in your interest to explore your options – other publishers have reaffirmed that they’re not following Simon & Schuster’s example. If you have a manuscript that may be auctioned, it’s in your strong interest to ask your agent to exclude Simon & Schuster imprints unless they agree before the auction to use industry standard terms.

8 thoughts on “Rights Grab”

  1. Simon & Schuster should be ashamed of themselves. They should now be listed as vanity or subsidy press or whatever you want to call them.
    It’s hard enough to get someone to pay attention to your book, but then the publisher want to rip you off as well. You can rest assure they would either negotiate or I will keep it off the auction block.

  2. I imagine most newbies will willingly sign the new contracts, regardless of the long term implications, but I can’t see many established authors getting wet for this new method of shafting writers.

  3. Maybe the publisher should change their name to “Simon and Scheister” if they really want to use small print to cheat authors of their rights.

  4. This is the talk of the firstchapters writing contest because with the winner gets $5000 and a publishing contract where it seems they can shanghai the rights forever. If there was ever five entries potentially qualified to go straight to POD it’s these. I do like one of them though.
    Lee maybe you can do a piece on this, because it looks like a test case to me.

  5. I know exactly what you mean, Karen. If anyone get offered a contract, I feel like this powerful feeling will overwhelm them. “Oh, I just wanna be published.”
    What’s really funny is S&S are caught off guard by the announcement that they can’t even come up with a decent explanation.
    LOL! @ Scheister. I don’t think S&S will appreciate that shyster comment.

  6. In actual practice, S and S’s contract revision may be less radical than it seems. Publishers have achieved the same results for generations when they declare a book “out of stock” instead of “out of print,” which is one of the conditions required for reversions. Basically, using existing contract language, publishers hang onto books as long as they feel like it by declaring them out of stock. They might not have one copy in their warehouses, but that doesn’t entitle the author to a reversion. Still, the new contract language moves a manuscript toward work-for-hire status.

  7. While I agree with the Authors Guild, I don’t think S&S’s new contract will have any impact for most writers. Keep in mind that about 90% of most books published sell 2,000 copies or less (BookScan) and disappear. Even with the contractual freedom to try to get one’s book reissued, it rarely happens.

  8. Then agains Peter, some actually sell out. If it’s that bad, according to Bookscan, and I haven’t looked, there’s a lot of firs time authors who won’t be back.
    Terry Shaw of Knoxville, Tenn. won the Gather contest for his Maine murder mystery, The Way Life Should Be. The context is a town councilman and friend of the reporter is killed late at night in a park known to be a gay pick up spot.
    I hope they print enough and it sells out.


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