This Sunday’s New York Times carried a story on the front page citing a letter sent on Friday by Random House to literary agents. The letter asserted that they (Random) hold any and all e-book rights to books they have under contract, regardless of the date of the original contract (many of which were signed before ebooks existed).
Markus Dohle, chief executive of the publishing arm of Bertelsmann AG, wrote in a letter dated December 11th that
the vast majority of our backlist contracts grant us the exclusive right to publish books in electronic formats. He also said that Random House’s older agreements granted it the exclusive right to publish a work “in book form” or “in any and all editions.”
This is likely a preemptive “shot across the bow” intended to warn authors away from negotiating separate publication for their works in ebooks or other digital formats. If electronic editions are not mentioned in a contract, it does seem that the author might reasonably think they had not granted these rights along with the rights to printed editions.
Simply the threat of litigation implied by the letter might be enough to bring the vast majority of their authors into line. This seems to fly in the face of the idea that rights are separable, and that only those rights specifically licensed by a contract ought to be governed by that contract.
A Little Personal History
At one time Jill and I owned our own publishing company, Globe Press Books. (For more on my life in books, check out the Publishing Timeline.) One of my responsibilities was writing contracts and signing authors.
Our publishing company was about as small as you can imagine. I sat in a converted bedroom upstairs in our house in Yorktown Heights, New York, with a part-time assistant in the converted bedroom next door, and ran the business through my PC, a fax machine and a Fedex account.
No matter how small we were, potential authors seemed to treat us with the same reverence and fear that they would treat Random House or Knopf, or any other real publisher.
After negotiations, I would present our contract (known as a Publishing Agreement) and they would sign. Fast. I never once, even for a moment, had an author hesitate to sign. Some wanted a few days to study the contract, but I thought this was a ruse. They weren’t studying the contract, because no one ever objected to anything in it.
After a while, I started throwing all sorts of things into these contracts, including all electronic rights in all known or unknown formats, in perpetuity (well, until the contact lapsed or was terminated). It astonished me that no author ever objected.
The Thing that is Longed-For
I deduced after a while that the longing to be a published author was so strong, the wait for a contract from a legitimate publisher so long, that no matter what was in the contract, they would likely have signed. If, indeed, anyone ever read the damn thing.
And I have to say we were extremely ethical publishers, anxious to do well by our authors, creating what we thought were beautiful books that really added value to people’s lives. What must have been in the contracts from the conglomerate publishers with fully-staffed legal departments?
The power imbalance between the publisher and the author is usually so extreme, and the object of the author’s obsession—the contract—so feverishly desired, that all sorts of unequal arrangements would easily pass without a murmur from the victim.
In our case, when we closed Globe Press Books, we canceled all contracts and explicitly returned all rights to the authors.
Self-Publishers Sign Contracts Too
My point here is a word of caution. Several self-published authors have spoken up recently on Book Marketing Network about being tied into a contract for 7 years with subsidy (vanity) publishers. Their frustration and anger at having got themselves into this fix is palpable in their comments.
No matter how desperately you want to get your book into print, no matter how much you long for that publisher contract, no matter how good the deal from the subsidy publisher sounds, STOP when you see the contract. Here’s what you need to do:
- Take a deep breath.
- Read it carefully.
- Get somebody else who knows about contracts to read it.
Do not skip #3. Like a marriage, a contract can affect you for a long time. And paraphrasing the old saw about marriage, with contracts you may “sign in haste, and repent at your leisure.”
Arguments have already started between Random House and the family of William Styron over the electronic rights to works published in the 1950s, 1960s and 1970s. Take your time and know exactly what you are signing. After all the hard work you’ve done, this is not the time to rush into an agreement.
If you have specific advice about signing Publishing Agreements, I’d love to hear it.