I received word today that publishing giant Simon & Schuster is now intent on extending their copyright control of an author’s work “in perpetuity.” This is a drastic shift and one I’ve been worried about for a number of years. Normally, traditional publishers—at least the decent ones—allow the author to re-gain the rights to a book after the book has gone out of print or fallen victim to low sales. This allows the author to have some control over their work and allows them to choose whether they want the book to remain in print either by self-publishing or, now, by taking the digital route. Simon & Schuster says no. They want to retain copyright to the work as long as it can be available in any form even if they have discontinued print runs and have no available copies left for traditional distribution into the bookstores. Anyone offered a contract is essentially being asked to give up any chance of reclaiming their work. For bestselling books this may not be a problem. But for authors whose books have a shorter shelf-life, this has a definite impact. What if the publisher retains the rights but does nothing? They can keep your work (just in case) and it may never see the light of day again.
Now, I know how frustrating it can be to have a work locked up by a publisher. When the publisher refuses to return the rights and also refuses to do anything else with a work, the work is consigned to limbo and the author enters a type of publishing hell. The author may know a small audience still exists but the publisher may deem it too small to consider. So they do nothing. This can—if he or she lets it—drive an author nuts.
The slippery slope of intellectual property rights is cause for concern. With the advent of the Internet and the appearance of the electronic publishing medium, it was merely a matter of time for this type of rights grab to raise its ugly head. In past years, authors have seen their ability to retain rights shrink. Twenty years ago publishers cared little about the ancillary rights. This at least provided some form of contract negotiation tactic for authors to gain control of their work. Then the publishers saw the gleam of the screen and slowly enfolded film rights into their assumed portion of control, then the digital world exploded and electronic rights began to beam brightly and catch the publisher’s eye. With the advent of publishing on demand (POD), it would seem publishers have their eyes wide open to the possibility of the never-ending book.
What to do? Well, for one thing writers and authors could become more literate about intellectual property. Few writers pay attention to their literary rights until the contract is slapped in front of them—at the exact moment when they are blinded by the light of publication—and rush through the process without even knowing what they are signing. Even those who are represented by an agent should arm themselves with knowledge and question all contract clauses to make sure they understand what they are signing. Consider carefully whether this is the right route to go for this particular work. Given this new dimension, the authors may have to live with their decisions for a long, long time, and they will have no one else to blame but themselves if, in the future, they find they have made a mistake that impacts them severely financially. Definitely think twice before signing with Simon & Schuster. Get legal advice before you write your name. (Of course all contracts should at least be reviewed by an entertainment lawyer with experience in the publishing industry.)
You also may want to consider supporting The Author's Guild. Below is the Member Alert from the Author’s Guild that outlines the new Simon & Schuster contract language. The email is reprinted with their permission as stated below.
UPDATE 05/18/07: Read Publisher's Weekly article by Jim Milliot
Subj: Member Alert: Simon & Schuster Rights Grab Date: 5/17/2007 11:54:32 A.M. Central Daylight Time From: _staff@authorsguild .org_
Simon & Schuster has changed its standard contract language in an attempt to
retain exclusive control of books even after they have gone out of print. Until now, Simon & Schuster, like all other major trade publishers, has followed the traditional practice in which rights to a work revert to the author if the book falls out of print or if its sales are low.
The publisher is signaling that it will no longer include minimum sales requirements for a work to be considered in print. Simon & Schuster is apparently seeking nothing less than an exclusive grant of rights in perpetuity. Effectively, the publisher would co-own your copyright.
The new contract would allow Simon & Schuster to consider a book in print, and under its exclusive control, so long as it’s available in any form, including through its own in-house database -- even if no copies are available to be ordered by traditional bookstores.
Other major trade publishers are not seeking a similar perpetual grant of rights.
We urge you to consider your options carefully:
1. Remember that if you sign a contract with Simon & Schuster that includes this clause, they’ll say you’re wed to them. Your book will live and die with this particular conglomerate.
2. Ask your agent to explore other options. Other publishers are not seeking an irrevocable grant of rights.
3. If you have a manuscript that may be auctioned, consider asking your agent to exclude Simon & Schuster imprints unless they agree before the auction to use industry standard terms.
4. Let us know if other major publishers follow suit. Any coordination among publishers on this matter has serious legal implications.
Feel free to forward and post this message in its entirety.
The Author's Guild is the nation’s oldest and largest organization of published book authors.