Author Doranna Durgin has several books with Baen, though she seems to have moved on to publish more recent books with other houses. Most of her Baen books make up a series, about a horse who accidentally gets turned into a human being and how she copes with it—and I own most of those books in e-book form.
However, the first book in the series, Dun Lady’s Jess, is no longer available through Baen—this can happen if the book has been taken to another publisher so Baen no longer has the rights. (Actually, the other books may not be available for new purchase, either; I just know that since I’ve already bought them they’re in my Baen catalog for downloading.) And I’m sad to say I neglected to purchase this first book when it was available. (I think I read it as a library paperback at the time.)
When I emailed Ms. Durgin about the book back in March, she explained it was currently in a reversion dispute, but would be republished when available as a DRM-free e-book via the Backlist eBooks project that Durgin has been doing in collaboration with an author friend. (She already has quite a number of books listed there.)
Now more details have come to light about the reversion dispute. Durgin explains on her blog that a few years ago she was invited to republish Dun Lady’s Jess with Canadian publisher Fitzhenry & Whiteside. It was published with a contract clause, added by Durgin and her agent to the standard rights-reversion boilerplate, requiring the publisher to keep the book in print through regular trade channels or else the publication rights revert to the author.
Since it was originally published, the book has gone out of availability—but when Durgin and her agent contacted Fitzhenry & Whiteside to request reversion of rights, the publisher said that it still has 1,600 copies sitting in a warehouse, and Durgin needs to buy them back in order for the rights to revert. The publisher then stopped replying to Durgin at all.
After another nudge—which included the reminder that the publisher could continue to sell warehoused copies in their usual fashion, as well as a reminder of the boilerplate changes–we were finally told: “This book is in stock, on sale on our website, it continues to sell albeit in lesser quantities. [my note: yes, a handful of copies a year] We have some 1,600 in stock with no reason to revert rights. ”
How about because it’s a contractual obligation?
Finally Durgin went to the SFWA’s GriefCom, or grievance committee, a committee that mediates disputes privately so no dirty laundry is aired. However, not only did the publisher continue to refuse to discuss matters beyond a promise that proof of distribution was forthcoming (except that the proof never ended up coming forth), the contact eventually led to a bizarre, anonymous phone call to the chair of the grievance committee “claiming harassment, declaring there would be no reversion on the title, and warning that she would ‘report’ us to [prominent Canadian SF writer #1] and [prominent Canadian SF writer #2]—all before hanging up on him.”
After one more attempt to contact the publisher and request the reversion, Durgin has posted the story publicly, and it’s getting a good deal of attention—I found out about it via BoingBoing, so you know the tale is spreading far and wide.
As Durgin points out, in this age of perpetual print via e-books and print-on-demand, contract language tying rights reversion to more specific conditions is very important—both for inclusion by the agent and author in the original contract, and for publishers honoring it when the conditions come to pass. When a publisher refuses to honor the terms of the contract it signed with an author, writers who are considering signing on need to take a serious look at that publisher and determine whether they still want to trust it.
I am a bit confused since I really have no idea on the details of the contracts and all those issues. After reading about this, I would think that the author could now simply republish the book however and whenever she wanted to. What would the original publisher be able to do? Take her to court? If so, all she needs to do is show up, show her contract, all the written details about the steps she took to solve the issue and I would expect that she would win.
the link in “DRM-free e-book via the Backlist eBooks project that” points to webscriptions instead of the backlist ebook project.
If the book is indeed in print and available through regular channels as it states above then the Author is stuck, after signing a dumb contract.
If, however the author is so certain that the contract terms have been met and the rights must revert – then she has a right to proceed as such and sell her title on.
It is up to the publisher above to take action to stop her and prove that she has broken the contract.
if she is not acting on the contract and proceeding with her own publishing of the title then it seems to me that she is actually not so sure about the contract’s terms.
Fixed the link, thanks.
I’m not sure what the story is on why they’re asking the publisher to acknowledge the reversion rather than just considering the rights to be reverted. My guess is that they want an explicit acknowledgement to head off potential litigation. The fact that the publisher is refusing to do so certainly suggests that there could be litigation in the offing if she does treat the rights as having reverted.
I don’t see a small publisher going to litigation just to retain any potential extra profits on 1600 books. Unfortunately there may be hidden partners and hidden agendas here. I’d want to look a little more closely at who and what is actually behind this before proceeding further.
Chris – “The fact that the publisher is refusing to do so certainly suggests that there could be litigation in the offing if she does treat the rights as having reverted.”
I would feel that it only suggests the publisher is doing what any normal belligerent business would do – refuse to cooperate and hope they go away. I don’t believe it is a sign they will actually spend money and go to court. of course while I say that – none of us has seen the contract 😉
First, if rights haven’t been officially reverted, IN WRITING, many distribution channels, and almost all other publishers, won’t touch any future versions with a 10-foot pole. The consequences of a future lawsuit by the publisher disputing the author’s rights to unilaterally assert reversion could be horrendously expensive for all concerned.
Disputes like this are why I prefer a more concrete reversion trigger: royalty earnings levels. I like a clause that says rights revert if the total of royalty earnings drops below $XYZ for a given period of time (usually a year), and from the publisher’s side, I might also want to add clauses requiring that the author buy stock at the PPB cost, or that the publisher have the right to continue selling old stock, and paying royalties at the old rate, or that the publisher be given 6 months to re-launch the book after the reversion request was received.
But the important thing is clarity. “Normal trade distribution channels” is not a clearly defined term. (And being listed in, for example, a wholesaler’s database might be enough to satisfy it, without ever making a sale.)
Money, however, tells no lies. And no matter what new formats or tech comes along, no matter how the industry changes, if the edition is still selling, and the publisher is still treating its authors fairly, those changes will still be pumping earnings through the royalty statement. So rights will only revert when the relationship really should be severed.
I don’t understand why Fitzhenry and Whiteside would be acting this way. But, were I running their finance department, I would already have written that inventory off as obsolescent, and I would be more than happy to offer it to the author at cost, or to revert rights as long as Fitzhenry and Whiteside retained the right to sell off those old copies in any way it chose.
Given that, I’m surprised that they’re taking the low road, and wonder if there weren’t some other interactions that established bad blood before this latest chapter.
1: is “regular trade channels” a term with a well-understood meaning?
2: What does the publisher stand to lose from reversion? They have their inventory and can sell it. Unless they’re planning to POD it, which I would like to assume would violate other clauses of the contract (or it was deficient).
One of the commenters on BoingBoing says it is:
As for your other question, I don’t know. Maybe they think they can get something out of it later. Maybe they just like being dogs in the manger.
@Marion — I’d be hard pressed to put my hands on them, but I’ve come across accounts of other publishers construing POD as what might here be termed ‘sales through regular trade channels,’ which basically makes the contract in question eternal. Hence my question #2.
Marion is absolutely right about the importance of legal language and insistence by distributors for assurances over rights. However I find it difficult to believe that there is a risk here of a big law suit as the financials involved appear to be far too small.
This contract seems to be typical of many writer/publisher contracts that I have seen in the last year, after taking an interest in that side of the business. Loose language, undefined terms, undefined costs and overheads. It’s a litany of intentional legal exploitation by publishers mixed with abject laziness by writers so keen to sign any contract that is offered.
Issues like reversion of rights should be deemed to revert automatically on the occurrence of specific, defined, conditions and the onus should be on the publisher to establish reasons to the contrary.
We had a discussion on the issues of contract content early in 2011 and even then it was tut tutted that publishing contracts should meet the standard used every day in business to business contracts.
The trouble is that there is a world of difference between being “well-understood terms” and being terms that a court can decide on and enforce.
There is case law, IIRC, on the definition of “normal trade channels,” and it certainly has a clearly understood meaning in the industry, but neither is a guarantee of a given outcome in litigation. And with literally millions of books or manuscripts to choose from, I can’t see any book business person taking that chance.
As for what the publisher stands to gain: I haven’t seen the contract. It may well not allow the publisher to continue to sell stock after reverting the rights. Many don’t. And the author or whoever posted about this may or may not have understood that part of the contract correctly. (I didn’t go look up any of the original sources, I confess.)
However, even if Fitz and Wits did have that right nailed down, there’s nothing to say that they didn’t have some sort of re-issue in the works, or that they don’t know of something else coming down the pike that they could piggy back upon.
We don’t know what’s in their minds. The author may not have heard their plans (and certainly won’t now). But, truly, I suspect that someone inside the house is furious with the author, and simply doesn’t want to deal. Publishers are people, too. And every so often, something that seems reasonable to a particular author causes no end of grief for his or her publisher and its staff.
Also some people (on both sides of the fence) are hard to take at any price. I have to say, however, that the really annoying people INSIDE publishers tend to be weeded out. Not universally, but frequently.
It’s a very small industry, and the worst offenders get bad reps very fast.
There’s no evidence that the publisher ignored the contract terms; in fact, in the comment section to this blog post, I take the contract language apart word by word and show that there’s been no breach. And it’s perfectly normal — standard, even — for a publisher to offer the chance to buy up the stock if you want to force your own book into an out-of-print situation. To make this a headline as if it were some bizarre, abnormal occurrence is a disservice to your readers.
The book is in print, to the tune of 1,600 copies (actual web-offset large-scale print-run copies, not PoD editions) still available for sale; it’s on sale in Canada (where the publisher is located), and ships immediately from Amazon.ca (it’s in stock); Amazon.com has it listed for sale from them, too, as does IndieBound in the States. And it’s simply not true that the publisher hasn’t responded to Doranna; they’ve responded both times she’s asked about reversions, as the timeline on her website shows.