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Authoring attorney advises authors to 'push back' Authors offered Simon & Schuster's revised out-of-print clause in the company's boilerplate contract should just "push back" by refusing to accept it, said Stephen Gillen, an attorney with Greenebaum Doll & McDonald PLLC. "By definition, the S&S change only preserves the company's right to continue to sell a handful of copies long after its interest in the book has waned. No right-thinking publisher would risk an otherwise attractive signing over this issue," he said. Simon & Schuster recently changed its standard contract language to retain exclusive control of books even after they have gone out of print. Simon & Schuster, like all other trade publishers, had previously 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 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. Authors were first informed of unannounced changes to S&S's standard contract by The Authors Guild (http://www.authorsguild.org/).
S&S accuses Guild of 'perpetrating serious misinformation' Simon & Schuster recently sent a press release to its "colleagues in the author and agent community" accusing The Authors Guild of "perpetrat[ing] serious misinformation" when it sent an alert out to its members regarding a change in S&S's standard contract language that would give the company exclusive control of books in perpetuity. In a message to its members following the S&S press release, The Authors Guild said it stands behind every word of its statement (read statement here: Simon & Schuster seeks perpetual grant of rights). From The Author's Guild's message to its members: "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." The full text of Simon & Schuster's release: TO OUR COLLEAGUES IN THE AUTHOR AND AGENT COMMUNITY The Authors Guild has recently perpetrated serious misinformation regarding Simon & Schuster, our author contracts and our commitment to making our authors' books available for sale. Unfortunately, these distortions were released by the Authors Guild without their having undertaken any effort to have a dialogue with Simon & Schuster on this topic. In recent years, Simon & Schuster has accepted, at the request of some agencies, contract language that specifies a minimum level of activity for print on demand titles. Our experience with the current high quality and accessibility of print on demand titles indicates to us that such minimums are no longer necessary. Our position on reversions for active titles remains unchanged. As always, we are willing to have an open and forthright dialogue on this or any other topic. When considering this issue, we ask you to please keep in mind these important points: * Through print on demand technology, publishers now have the ability, for the first time in history, to actually fulfill the promise which is at the core of their contracts with authors - to keep the author's book available for sale over the term of the license. * We view this progress as a great opportunity to maximize the sales potential for slow moving titles, and some of the best news for authors and publishers in a long time. The potential benefit for all concerned in incremental income for the publishing partnership far outweighs any imaginary negatives purported by the Authors Guild. * We and others are investing heavily in digitization so that authors and publishers can reap the maximum benefit of publication over the long term. New technologies including print on demand will extend the life of a book far beyond what has been possible in the past. * Contrary to the Authors Guild assertion, using technologies like print on demand is not about "squirreling away" rights, nor does it mean that "no copies are available to be ordered by traditional bookstores." Print on demand is simply a means of manufacturing a book, making it widely available to retailers and consumers. * Publishers must and will continue to invest in sales and marketing organizations that work on behalf of its books regardless of how they are manufactured. Among the activities that publishers regularly undertake for backlist titles: -- Keeping them available for sale everywhere books are sold, through brick and mortar and online stores. -- Our Sales team regularly reviews inventory opportunities with all our accounts. -- Distribution of online assets (covers, bios, synopses, chapters) and data feeds about basic information to both online and traditional retailers. -- Books are cataloged and regularly featured and solicited in category promotions. -- Re-promotion of books to tie in with seasonal and current events. -- Re-promotion of an author's backlist titles together with new frontlist releases. * Print on demand, digital archives, and virtual warehouses support greater flexibility and effectiveness in making books available. Simon & Schuster has already had instances where a high level of sales activity of print on demand titles has led us to go back to press for larger quantities. Most importantly, we hope you know that we view authors and agents as our partners in the publishing process. We have always been open to discussion and negotiated in good faith at every point in the life of a book. Please feel free to contact us if you have any questions. Simon & Schuster seeks perpetual grant of rights The Authors Guild has issued an alert to its members warning them that trade publisher 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. The traditional practice - followed by all other major trade publishers -- is that rights 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," said The Authors Guild. "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, said The Authors Guild, 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. The Authors Guild urges authors to consider their options carefully, including:
Attorney: Print-on-demand technology not good reason for 'out of print' clause The change reported in Simon & Schuster's "out of print clause," which would do away with requirements that inventory copies of a book be available for sale or that minimum sales be maintained for a work to be considered "in print," said Arthur J. Jacobs, an attorney with Jacobs deBrauwere LLP, is clearly not in the interests of most authors. "Simon & Schuster is apparently justifying the change on the grounds that print-on-demand technology makes it unnecessary to maintain an inventory of hard copies," he said. "However, especially for complicated or expensive texts, print-on-demand technology is likely to be expensive and time-consuming. Purchasing a print-on-demand copy may not be worth the time and expense, compared with simply picking the book off a bookstore or warehouse shelf. 'Availability' would often exist in theory, but not in practice." Moreover, said Jacobs, most publishers are a long way from relying mainly on print-on-demand technology. "Entering into agreements with Simon & Schuster's new boilerplate, while the publisher is still relying on conventional inventories, leaves an author right now with the worst possible worlds: sales dry up, and yet the book is still deemed 'available.'" The fairest way to deal with the subject, he said, is to require a minimum sales level for a book to be deemed "in print," regardless of whether the sales are from inventory or print-on-demand or by some other means: "When sales fall to a negligible level for a significant period of time, it means either that the publisher is doing a bad job of selling the book or that there is no market for the book. Either way, the publisher, under such circumstances, has no justifiable interest in retaining the right to publish the book, and the rights should revert so that the author has the option of seeking a new publisher (who presumably believes in the book and will invest resources in marketing and distributing it) or self-publishing." S&S accuses Guild of overreacting to change in rights clause Following an alert made by The Authors Guild warning its members of Simon & Schuster's attempt to gain perpetual grant of rights in its contracts with authors, the company has said that it will continue to negotiate regarding its reversion of rights clause "on a book-by-book basis." They also accused The Authors Guild of overreacting to the change in their standard contract language. Simon & Schuster's official reaction, from Adam Rothberg, VP for Corporate Communications: "We are surprised at the overreaction of the Authors Guild to Simon & Schuster's contract. We believe that our contract appropriately addresses the improved technology, increased availability, and higher quality of print on demand books, and reflects the fact that print on demand technology as an unprecedented opportunity for authors and publishers to keep their books alive and available and selling in the marketplace in a way that may not have been previously possible for many authors, and are confident in the long term that it will be a benefit for all concerned. We would also like the author and agent community to know that, when necessary, we have always had good faith negotiations on the subject of reversions, and will continue to on a book-by-book basis." Authoring attorney to authors: Think twice before signing standard publishing contracts Authoring attorney Zick Rubin said Simon & Schuster's statement that it will continue to negotiate authors' contracts with regard to the reversion of rights clause is no surprise. "Boilerplate contracts are one thing, actual contracts another," he said. "Boilerplate contracts are not written in stone. Academic authors are often too quick to sign anything that is presented to them, especially for their scholarly works. But boilerplate contracts sometimes contain oppressive provisions, and publishers are often willing to change them." The reversion of rights to the author when sales dwindle, Rubin said, is even more vital to the textbook author than to most trade book authors. "Without such a reversion of rights when sales fall off, the publisher could decline to revise the text (which is the publisher's prerogative) and at the same time prevent the author from publishing a revision with another publisher, as long as the book was kept available in a print-on-demand database. That would be oppressive, and I would advise a textbook author to think twice before signing such a contract."
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