For a law student studying contracts law, this principle is axiomatic: You don’t give away your rights unless you get something of value in return. Sadly, though, writers historically have done that all too often. Because they hunger to be published, preferably by a large corporate publisher, they sign contracts with poor terms and pitifully low royalty rates. In the past, however, they at least knew that if the book went out of print, those publishing rights would revert to them.
Not any more.
When does an eBook go out of print? Never. When does a print book go out of print? If the publisher sets it up for print-on-demand, never. So today, writers face the possibility of granting licenses that will never revert.
The Authors Guild and other organizations have proposed various contract provisions to alleviate this situation, but the sad truth is the Authors Guild has little to no clout. The Big Five publishers are cogs within large corporations and large corporations do not give up anything of value if they can avoid it. Why would they?
Some have advocated contract clauses providing that if a book doesn’t sell a certain number of books, say, 200 copies a year, the rights revert. But a publisher can easily circumvent that. Make the book available online for 99 cents (or less) and it will cross that threshold. Some have advocated clauses providing that if an author doesn’t earn a minimal amount, say, $200 a year, the rights revert. But the publisher can easily circumvent that. Even if the publisher has to pay a small fee to an author, it might be willing to do so to hold onto the rights. Bottom line, I don’t think clauses based on sales or money are the solution.
Here’s what I recommend: whenever possible, limit the term of your licenses to a number of years. License the rights for five years, or ten years, long enough to make it worthwhile for the publisher. But when the term is over, the rights revert, or the publisher may request an extension based upon the same or better terms. Something like this:
The Author grants and assigns the Publisher the following rights (insert rights). The period of this license shall be for five years, at which point, the contract may be renewed on the same or better terms, provided both parties agree.
You may be thinking, no publisher would agree to that. But I’ve gotten it and I know other writers who have as well. If you’re a first-time writer dealing with a Big Five publisher, it may not happen. But you can still ask, or tell your agent to do so. And if you can’t get it, you might think twice about signing that contract. Are you getting enough value to justify giving those rights away forever?
And just so you know, Amazon Publishing traditionally offers contracts with term clauses.