Pulling Back the Publishing Veil: Life of Copyright Terms

Michael J. Sullivan

There has been much talk this week about the contract terms of Random House’s new digital imprints. John Scalzi, president of the SFWA has had several posts on his his blog and Hydra’s (that’s the digital only science fiction and fantasy imprint of Random House) contract has also been denounced by Victoria Strauss of SWFA’s Writer Beware. The fact that a digital-only imprint has a contract with terrible terms is not a surprise, did anyone really expect anything else? In fact my blog post right here on Amazing stories in January (Digital Only Publishing – Think Twice Before You Sign) predicted that the terms would be bad, and suggested authors would be better off on their own. In a response to Hydra the SFWA called their contract, “outrageous and egregious,” which it is, but why does the SFWA not have similar outrage for the clauses in industry standard contracts that every member of their organization who signs with a major publisher is subjected to? Which brings me to my topic today: life of copyright terms.

When you sign a contract for publication, you are essentially giving the publisher the right to market and sell your intellectual property for a given period of time in specified territories. All contracts have a time period by which they are in enforce. Your cell phone plan is a contract usually for a few years, when you hired at a company, you often have a contract that is in place for as long as you work there. If you sign a contract with a major publisher your “term” of that contract is “until you die + 70 years.” I don’t know about anyone else but that seems pretty ”outrageous and egregious” to me, and yet it is a non-negotiable point and exists in every contract offered by the big-six and their fantasy/science fiction imprints.

In fact, Victoria Strauss had this to say in her post, SFWA De-Lists Hydra; Random House Responds, she says:

I don’t agree that life-of-copyright contracts are an automatic red flag. For one thing, they’re standard in the publishing industry (and that includes many smaller digital-only publishers). Is this fair? Does the publisher need it? Maybe not. But it’s a fact.

My question is why isn’t she, or any other organization that is tasking themselves for looking out for author’s rights doing something to change this standard?

Now I would be remiss, if I didn’t point out that most of these life of copyright contracts actually do end. The reason is because of the “out of print clause.” In the old days, back before ebooks, determining that a book went out of print was a pretty easy thing to determine. The publisher did a print run, put the books in the warehouse, and when they were gone, the book was “out of print” and the rights revered, and the contract terminated. Easy enough. But today we have print-on-demand, and ebooks, and so in many cases there are no books sitting in a warehouse. There are some contracts that fail to address the current state of technology and so as such there are many contracts that have no legal way to revert. Authors in these situations may still be able to get their rights back just by requesting…if the title is low-selling…as it really is of no valu to the publisher.

But the more common way to address this is to establish a number of books sold, or income produced, in a given period as a threshold for determining if the book is still in print. Sounds reasonable enough, except that what an author deems as a “reasonable level” and what the publisher believes it should be are two very different numbers, and guess who wins?

The way I look at publishing contracts is I’m giving the publisher the right to sell my book in exchange for providing me an income, once that income is no longer flowing, they no longer should have the right. Both of my contracts specify this level at $500 a year. Not really what I consider a reasonable yearly income, and far below what I think I could get if I had the publication rights. I tried to get this number increased to $1,500 on negotiations of my latest contract, and that was out of the question. My agent thought she MIGHT be able to get it to $600 but it would be a hard fight and would delay a contract that had already taken months by a lot longer. When I talked to some other agents about whether $500 was in line with what they were seeing for their clients, the response was, “That’s actually quite good, some of my authors have $150 or $300 thresholds.”

In the same post Victoria has this to say about thresholds:

For another thing, as long as there’s precise reversion language that ensures a book goes out of print when sales fall below a reasonable minimum (“reasonable” being keyed to the publisher’s average sales expectations), life-of-copyright doesn’t have to be a problem.

Once again, I have to question why is “reasonable” keyed to the “publisher’s” expectations and not the “author’s”? Isn’t SWFA and Writer Beware supposed to be protecting the rights of author and more concerned with them then the publishers?

It seems to me that a term of 5 – 7 years would be a reasonable term. After all, if a publisher hasn’t been able to generate an audience by then, the chances that they will eventually get some traction are pretty slim. If a book is doing well, the publishers costs have been re cooperated long ago, and at this point the book is the proverbial “cash cow” earning well with little or no effort required. The “initial risks” are gone and the publisher and the author are on a more “even footing.” An adjustment of royalties may be required to get the author to keep the book with the publisher. In the current system, the income divide between publisher and author increases substantially the more successful a book becomes. Besides, if the publisher has treated the author well, they will be more than happy to extend the contract, but if not…it gives the author to find a better partner (which may mean no partner) on their own.

Publish America is hands down the worst “organization” (I won’t call them a publisher) in the business. They are universally scorned and yet even they have a fixed-term contract (7 years). I find it terribly ironic that when it comes to the length of a contract, they actually score incredibly better than all of the big-six, and yet no author’s organization feels compelled to do anything about this.

Hugh Howey, author of Wool, turned down multiple seven-figure contracts, not because of the advance, but because he wanted:

a contract that, when read, made me feel like a human being.

Hugh’s sales are such that he eventually got exactly that, a print-only contract from Simon & Schuster. Someone at his level has the leverage and power to get such a thing. If the agents, authors, and writing associations start to seriously push back about life of copyright we, too, may someday see big-six contracts that aren’t “outrageous and egregious” but for now this is the reality of the state of traditional publishing today.