Publishing: Contracts, Respect & Reversion
I’ve criticized Dean Wesley Smith in the past. But I found this particular recent post by him to be very enlightening and useful.
Quite a long time ago (by the age of my blog) I posted a speculative piece about what the future of publishing might look like. As part of that speculation, I talked about how today’s mid-lister (and tomorrow’s Big Name) authors might grow increasingly disillusioned with overly-aggressive contracts from Big Publishing, and would defect to strike out on their own (though I was mostly wrong about the means of that defection, I appear to have been right about the motives).
And that’s basically what Dean is talking about.
In his post, Dean discusses some simple changes to contracts that Publishers could make that would attract him back to traditional publishing. But what’s important is that what Dean’s looking for isn’t more money, it’s contractual control over his own work. He’s asking for a firm rights reversion date, artistic control of his own writing, and equitable consideration for contract cancellation in the case of a publisher’s failure to live up to its own terms. And Dean equates this control with his own dignity and respect.
I don’t hide the fact that, for myself, I prefer the traditional publication path to the digital self-publishing path (though I’m yet in no position to make a decision about which path I will ultimately pursue). But I agree with Dean that these are some pretty basic requirements for writers to expect in their contracts. And of these, the most important clause that Dean mentions is the one about rights reversion.
There’s an old adage about selling your birthright for a mess of pottage. The moral of that old adage is simple: don’t trade something of long-term and enduring value for something with limited, short-term worth. If you’re a writer, your “birthright” is the work you produce and the long-lived copyrights you have in it. The “pottage” is that short-term infusion of cash that you get in the form of an advance. This isn’t knocking the advance, of course. Author Advances, though pitifully small today, have historically been an important means by which authors make a living while writing. But the advance is something of a limited, short-term value (and even more limited and more short-term the smaller it gets) that is potentially significantly less than the full, long-term value of the author’s copyright. By giving away the ability to exploit that copyright again in the future, authors sell themselves short, and diminish the value of their own work.
Dean makes an important comparison in his post to the short fiction market. If you’re selling a short story, for instance, the market which buys it is typically interested in purchasing “First North American” or “First World” or “First Some Specific Region” rights. That’s a license with a very narrow set of parameters: covering only the first time a work is published within a certain regional market. Sometimes there may be some period of exclusivity included in such a contract, a limited time frame during which the author agrees not to publish the short story again. As soon as that period of exclusivity passes, if there is one, the author is fully empowered to sell additional rights, or to self-publish, or do whatever else the author might like with that story.
That’s not the way it’s typically worked in novel publishing. In the novel markets, publishers often include reversion clauses with nebulous terms that give the publisher rights for as long as a book remains “in print”, where the phrase “in print” is sometimes not very well defined, and even less well defined in the age of digital books. For big-name authors who sell a large volume of books, this is rarely a problem. But for mid-listers (who may be the big-name authors of tomorrow), this is a mess, which painfully limits their ability to extract additional amounts of value from their own copyrights.
One thing that’s been shown by the self-publishing explosion is that mid-list authors, who’ve benefited in the past from the name-recognition that’s built up in part thanks to the marketing efforts of publishers (however invisible those efforts are to some authors) are often better-positioned to extract value from their “back-list” titles than the publisher who first published them. This is part of the whole “long-tail” phenomenon. Most of the upfront value in those titles has already been extracted, and the authors and publishers both have made the bulk of the profits that can be made from those titles. But below a certain level of sales, there’s no further economic value to a publisher: they can’t print and sell the title in the bulk quantities they need to keep the per-unit costs low enough to be profitable. But even a small number of regular sales is an economic boon to the original authors – compounded over a decent number of back-list titles, a mid-list author can make by all accounts make a decent living in this way. And digital self-publishing and print-on-demand publishing are tools that authors can use to extract that value.
But publishers are trying to hold onto those rights, even after the point when it becomes economically unviable for them to exploit any further value. I’m sure there are a lot of reasons why they are doing this – some of them possibly even good reasons, from a short-term version of the publisher’s perspective. And they use imprecise and vague language to try to secure those rights for the long term.
This use of imprecise legal language which has such a deleterious effect on mid-list writers is something that’s going to have to change: for the benefit of writers and for the long-term viability of the publishing industry. Because more and more writers are fleeing traditional publishing. Some of those writers might actually prefer the traditional publishing path, but can’t stomach this sort of loss of control. For new and mid-list authors, more and more, the kinds of aggressive rights grabs that publishers are trying to inject in their contracts just won’t be accepted. Thanks to the internet, new and mid-list authors are growing increasingly savvy about their various options, and about their legal rights. As more and more of them reject these sorts of contract terms and decide to go it alone, there will be fewer and fewer new breakout authors to bolster the publisher’s bottom lines. Without changes like this, I suspect that the long-term traditional publishing is going to see a painful dearth of new talent that will atrophy their long-term viability.