If the book does well, your publisher may want revisions or updates to keep the book current.  Also, the publisher may hope for future books from you.  On the other hand, if the work doesn’t do well or the publisher has financial difficulties and declares bankruptcy, you may get your rights back under certain circumstances.  These contract provisions deal with these topics, and this is where you should ask for changes if you are dissatisfied with these clauses, and publishers may be quite open to these changes if requested.

 

An Option for Future Books

Sometimes publishers will include an option clause, which provides for the right of refusal on your next book or next two books at the same terms as your present contract, and commonly the publisher will get 60 to 90 days to exercise this option.  This clause can be fine if you really like dealing with this publisher, like your current agreement, and don’t want to go anywhere else.  But however you feel about your publisher and current arrangements, this option can be a trap, so ideally, get this clause removed, and you can always continue to work with this publisher on future books by mutual agreement.  For some writers who write many books on different topics, such as myself, this option would be a deal breaker, because it can conflict with making deals with other publishers.

 

It is reasonable that a future book you write not conflict with your book which the publisher is currently publishing, but this situation is already covered under the non-compete clause, so there is no need to tie up your next books under this agreement, and I have found that most publishers will willingly remove it.  After all, they want a harmonious future arrangement, where you mutually agree for them to publish your next book.  Also, it is possible for a dissatisfied writer to defeat such a clause by submitting one or two terrible proposals or book manuscript that they have no intention of writing, whereupon the non-compete clause will expire anyway.

 

Alternatively, if the publisher does want a future books option clause, it is easy to make this restrictive, as in making the non-compete clause specific to the type of book you are already publishing with that publisher.  For example, if you have a self-help book on overcoming alcohol abuse and addictions, you could specify that the future option will only apply to books dealing with alcohol and addiction problems.

 

However, the simplest arrangement is to remove the clause, which a publisher might do by taking it out of the contract and renumbering the following clauses, or by writing the number and name of this clause (i.e.: Option Clause) and stating that it has been “Removed by agreement.”

 

Revised or Updated Editions

This clause describes what you can do if the publisher wants an update or rewrite after the publication of the initial edition, say after two or three years.  Typically, this is an offer for you to update, edit, or revise the work for an additional payment (such as $500 or $1000), which will be considered an additional advance against future royalties.  However, you can choose not to do any further work on the book, and in this case the publisher has to right to hire someone else to make the change or can arrange for someone to do the work in house.  In either case, the publisher can charge the reasonable cost or value of that work against future royalties.  Presumably, that should be the same amount as the publisher is offering you, so you might get that amoun spelled out in the agreement, so the publisher can’t pay someone else much more than you would be paid and charge that against your future royalties.

 

In some cases, the publisher may bring in another author to share the author’s billing with you on a future edition, in which case, that person will not only get an up-front payment but will receive a share of the royalties on future publications of the book.  The publisher might even revise the credited authors on the cover to reflect this, such as happened with one of my books on a legal topic: collecting on a judgment.  While I wrote the first book and the publisher revised the book in-house for the second edition without any charge to me, for the third edition, the publisher brought in a lawyer to share the credits and royalties with me, resulting in 25% of the payments on the third edition going to him and 75% to me.  Eventually, after another round of revisions, the publisher gave me a payment to buy me out from future editions completely, since I was no longer contributing anything to these revisions, nor did I want to.

 

In any case, if you want to remain the sole author and retain control of future changes, by all means agree to do the revisions or updates.  Possible, though, you might be able to negotiate a higher advance than the publisher originally offers – or make the amount contingent on the number of pages that require revisions or the number of words you will be changing or adding to the text.

 

Getting Back Your Rights

This reversion of rights clause spells out when your book is deemed out of print, whereupon you can request back the rights.  This return of rights clause can be written in a number of ways, and you should make sure it realistically reflects the situation where your book is not selling a significant number of copies in any format after a certain time period.  It is important to seek some floor for this determination, because otherwise, your book could conceivably never be considered out of print, because of the potential for e-book sales.

Many clauses about reverting rights do not include a number, but you should seek to add one indicating the minimum number of sales each year after a certain period of time, commonly two to three years after the book has been published.  For example, you might ask that the book be deemed out-of-print where it has sold less than 100 copies a year – or even less than 25 or 50 copies.  Just put in some small number, so you have some basis for claiming the book is now out-of-print to enable you to request a reversion of rights.

 

Normally, this reversion clause will require you to send a written request to the publisher asking for the rights back if the publisher fails to reprint, repackage, or publish a new edition; license the edition to another publisher; or advise you of its plan to do so. Under any of these circumstances, you can send the publisher a termination letter, asking that the rights now return to you.  After receiving this letter, the publisher will typically have an additional time period, such as two weeks to consider your request and decide whether to republish the original book or an update or not.  If not, the rights revert to you.

 

Additionally, this clause will often allow a publisher to continue to resell any books it has already printed for a certain period of time after termination (such as one or two years), with the understanding that it will pay any royalties still due under the original agreement.  In some cases, even if it is not in the contract, if you get a series of statements showing a lack of a sales for a year or so, you can simply write to the publisher to request the return of your rights, and many publishers will agree, since they don’t expect the sales to improve and are already planning to retire the book.

 

Aside from getting a floor to define when a book can be considered out of print after a certain number of years of publication, the rest of the reversion clause is usually fine.   Commonly, a publisher will send you a formal letter advising you that the rights are returned to you, with the provision that any agreements the publisher has already entered into with third parties (such as translation rights to a publisher in another country) will remain in force, along with the right to continue to sell any remaining copies for a specified period after termination. Once you get the publisher’s agreement to revert the rights to you, if it’s not already in a formal letter, such as if the publisher sends you an email, ask the publisher for this letter, since you can then use it to show other publishers who may be interested in republishing your book now that you have the full rights to it again.

 

While this isn’t necessary to include in the contract, sometimes a publisher will decide to remainder a book and get rid of all its stock, and will normally give the author the first option to buy any number of the remaining books.  This is another condition where the book is considered out of print, so once the publisher announces this this sale to sell off its stock, whether to you or another party, you will get the rights back.  In this case, you don’t need to send a request for the rights back or a termination letter, because the remainder sale means the book is now out of print.  Just keep the letter to show other publishers, that the book is out of print and you have the rights back.

 

Finally, if the publisher goes bankrupt or goes out of business, this clause will state that you either get back the rights or are offered the right to buy back the rights and any remaining copies, whether bound or unbound, at their fair market value, as determined by an agreement between the publisher and author. Should you decide not to buy the books back, the publisher can sell its stock for the best price it can without having to provide you with an accounting or any payment.  Preferably, make it clear in the contract that you get back the rights automatically in the event of a bankruptcy or if the publisher ceases operations rather than having to buy back your rights or set a value on the cost of these books, which should at most be a small percentage of the regular retail price.

 

Assignment of Rights and Beneficiaries

Just as the contract will state what might happen if the publisher goes out of business or wants to assign its rights to another entity, so it will provide for what happens in the event of your own death or if you want to assign your rights to someone else.  Based on this clause, you have the right to assign any money due under the agreement, while the publisher can assign its rights and obligations to another party.

 

For example, if you owe someone money or want to give a friend, relative, or spouse a gift, you could assign your right in the manuscript to them.   By the same token, a publisher could turn over its rights in your book to another publisher, such as in the event of an acquisition or sale of the business.  Additionally, in the event of the author’s death, the publisher can agree to pay any future royalties to a beneficiary or the executor of the author’s estate, as long as this party sends the publisher the appropriate written notice and documentation to receive these payments.

 

* * * * * *

GINI GRAHAM SCOTT, Ph.D., is a nationally known writer, consultant, speaker, and seminar/workshop leader, who has published over 50 books on diverse subjects, including business and work relationships, professional and personal development, and social trends. She also writes books, proposals, scripts, articles, blogs, website copy, press releases, and marketing materials for clients as the founder and director of Changemakers Publishing and Writing and is the Creative Director of Publishers, Agents, and Films (www.publishersagentsandfilms.com). She has been a featured expert guest on hundreds of TV and radio programs, including Good Morning America, Oprah, and CNN, talking about the topics in her books.
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