Pub Rants

That’s No Moon; That’s A Space Station

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STATUS: A new client said YES and came on board today! Hooray! It was stiff competition to but I’m so excited about this novel. When I can talk about it more, I will. I also spent a lot of time on the phone today and the receiver is now glued to my left ear. Chutney is still struggling because she’s having trouble keeping food down. At least she is willing to eat plain white rice and that seems to be settling her stomach.

What’s playing on the iPod right now? SOMEBODY HAVE MERCY by Sam Cooke

How can I not have thoughts about an evil empire when word comes down (mainly through the Authors Guild) that Simon & Schuster would now like to change their boilerplate language for their Out of Print Clause and let me just tell you that it’s not in an author’s favor.

And to sum it up succinctly, they want to change the language so that the books they buy never go out of the print, the rights won’t revert back to the author, and they get to hold the rights into perpetuity.

How will this be done? By 1) not allowing language that restricts the OOP definition in terms of X number of copies sold during a certain period, and 2) by also not allowing language that states that electronic versions only will not constitute the work being in print.

In the age of digitalization and Print on Demand, that means “into perpetuity” folks.

Here’s the sum up from the Authors Guild:
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.

Red Squadron get ready since I’m expecting several S&S contracts in the next week or so.

I have to wonder what S&S is thinking because I know what I’m going to be thinking if they adhere to this “new” boilerplate language and that is that I might need to sell my projects elsewhere.

23 Responses

  1. Kimber An said:

    While I was reading the first part of this, I was thinking, “Sheesh, I wonder if she ever feels put over the barrel?” You answered my question in the last paragraph. Thanks!

  2. Katie Alender said:

    Kristin, on what I think is a similar topic, what are your thoughts on the royalty rates for e-books? Do you think at some point someone is going to have to draw a line in the sand to reflect the difference in (lack of) production costs vs. printed matter? Or do you think the going rates will be carved in stone and we’re all just going to have to like it?

  3. LadyBronco said:

    I wonder if S&S will change their boilerplate back if agents stop shopping their client’s work to them?

    I hope you stick to your guns, Kristen!

  4. Susan Helene Gottfried said:

    Kristin, the Tour Manager is stuck on one point in all this: Copyright. After all, even an author doesn’t own the copyright to his/her own work in perpetuity.

    Wouldn’t that come into play in this scenario and affect this clause?

  5. ian said:

    “You are required to maneuver along this trench…”

    You’ve got The Force on your side, Kristin. Let us know how it goes in the trench.

    And no, I’m not Biggs.

    Done with SW references for the moment.

  6. CM said:


    Of course S&S can’t “own” the work after the copyright expires. But it doesn’t do the author much good to know that S&S’s term is limited to 70 years after her death.

    “Perpetuity,” I think, here means “effectively perpetual” from the point of view of the uathor.

  7. Susan Helene Gottfried said:

    cm, that’s the sort of thing that ought to be explicitly clarified, don’t you think? If the meaning of the word “is” can be quibbled about in courts of law, wouldn’t an author and his/her agent be best served by quibbling over what “in perpetuity” means?

    If there is the slightest chance that “in perpetuity” can somehow extend beyond the copyright — and if a book turns out to be a long-time best-seller (think Gone with the Wind), this scenario isn’t that far-fetched — I can see any savvy publisher trying to make sure they continue to get a piece of that action.

  8. Maya Reynolds said:

    This was bound to happen.

    The Internet has created a virtual bookshelf that exists into perpetuity. With the advent of POD technology, a book can “be available” for sale forever. With the proper structure in place, a publisher can economically print and sell one book a year. No warehousing costs, no messy returns. The sell-through is 100% because readers order and pay for the book at the same time. The publisher (or a designate like Amazon) prints and supplies the book.

    As long as the book continues to sell, many authors would not have an issue with such a contract since most boilerplate contracts already include language as to how many books must continue to sell for the publisher to retain rights. However that clause “as long as the book continues to sell” is the sticking point.

    My guess is that S&S is trying to shift from its role as a traditional publisher to that of a digital publisher.

    There’s an expense to creating a digital file. Google has been willing to eat that expense for any publisher that participates in its Partner Program. Random House and HarperCollins have opted to eat the expense themselves and develop their own widgets by which they can sell books from their own sites using a type of “search inside” program.

    I’m wondering if S&S’s thinking is that they need perpetual rights to justify the expense of digitizing.

    The first questions that occur to me are:

    1) What is S&S offering in the way of developing a system that points traffic in the direction of a book it digitizes and keeps on the virtual bookshelf forever? Listing the book on Google’s Partner Program (as S&S currently does) is passive, not active.

    2) What accommodation is there in the new contract for revisiting royalty percentages? As an example, both Nora Roberts and Janet Evanovich published many romances before they became blockbuster sellers. I’m guessing their current deals are structured to give them much higher percentages than they originally were paid. Does S&S expect to lock authors into one deal with a never-changing percentage into perpetuity?

    3) What’s the quid pro quo to the author for this change in contract? They have to be offering something.

    Frankly, the Authors Guild has not impressed me with their understanding of the digital world. They sued Google for its Book Search program because they didn’t understand it (see my blog for April 27, 2007).

    I just think there’s more to this that appears on first blush.

  9. bran fan said:

    Everyone is commenting on the second part of your post, but I am very interested in the first part, where you said that you were excited about a new client. Congrats to both you and new client.

    It was very eye-opening to me to see that agents get excited about taking on a new client. As a writer, I never thought that was the case. It seems like we writers practically beg agents to take us on because we are many and agents are few. But perhaps this isn’t the case. Or perhaps you simply value your clients more than most agents do. Either way, it was lovely to read.

  10. spyscribbler said:

    Yes, Susan brought up a great point. I’m confused as well. Copyright doesn’t go on for “perpetuity.” Would this override copyright law? Or what?

  11. Anonymous said:

    I think Kristen is using the term “in perpetuity” and not S&S. I got this announcement from Author’s Guild in my email last night. It is bad for authors. Trust me, if you’ve ever had a bad experience with a publisher holding on to your work (and I have) you don’t want this clause in the contract. Copyright is copyright for a limited time. The question is what happens to you and your work in your lifetime, and you don’t want some publisher holding it hostage where it really isn’t readily available, but technically considered “in print” due to legal mumbo jumbo – and THAT my friend IS what this is about. Rock on, Kristen! I hope all agents do, too. We need to hold S&S’s feet to the fire on this one.

  12. CM said:


    There isn’t the slightest chance–even if S&S used the term–that it could write a contract giving itself perpetual copyright in a work. The contract is between the author and the publisher; it can’t change the rules between the author and the public, or the publisher and the government. Contracts don’t work like that, and we don’t need a court of law to determine that.

    And as anon has pointed out, S&S doesn’t use the term “in perpetuity”–its terms just have the effect of perpetually divesting the author of future rights to her works.

  13. Hollyridge Press said:

    I think you’re going to find that even if S&S keeps the book in print through its availability as a print on demand title, the author is going to get some sales out of it. In fact, POD ought to be the savior of literature just by virtue of the fact that it does keep books in print.

    I’m editing for a tiny literary press in Venice, CA, and we’ve reprinted a few poetry and fiction titles that have been out of print, for more than a decade. All of those titles are selling — a little. Now the authors aren’t seeing huge returns, but what pleases them is that their work is available when it otherwise wouldn’t be.

    I think Maya’s points are well taken: What is S&S doing to drive some traffic to this backlist? We send out emails throughout the year to to an opt-in list reminding people that the books are still available. We run Google and MSN ads, and in our limited display advertising — we are very small — we try to include mentions of those reprints.

    The bad change is if the book sells zero and S&S stills claims that it’s in print but does nothing to support the title.

  14. Maya Reynolds said:

    Thanks, Hollyridge Press.

    Right now, books that are not bestsellers have a very short shelf life and, once they’re off the retailers’ bookshelves, the only way to buy them is from used bookstores. And we all know that used book sales earn the writer nothing.

    Both Publishers Marketplace and Publishers Weekly have articles today in which S&S’s spokesman Adam Rothberg says Authors Guild overreacted (which is exactly what they did when Google Book Search was announced two years ago). Present S&S authors are indicating that the current S&S boilerplate agreement does not include minimum sales thresholds, but that this clause is readily negotiated.

    That was exactly my experience with a contract (not with S&S). The language wasn’t there, but it was added without difficulty.

    Although I had a kneejerk reaction when I first heard this around 10 PM last night, I woke up this morning thinking I wanted to hear more from S&S.

    As traditional print publishers move into a digital world with access to POD technology, they are going to have to offer authors MORE, not less. If they don’t, those authors will be ripe for an Amazon, a Google or an e-Bay to move into publishing and provide better terms and more promotion than most writers currently get. Amazon acquired BookSurge (a POD company) in 2005, Google already has the search database in place and e-Bay is looking for new markets.

    Just one writer’s opinion.

  15. Diana Peterfreund said:

    Yes, the idea of perpetual POD for out of print books is nice, but here’s how it can be difficult for an author:

    Author writes series. Publisher publishes say, one or two books from the series, then drops it.

    Under the old system, the author can get the rights back to that series eventually, then sell it elsewhere, where the new publisher may put out book three along with book one and two with snazzy matching covers — a whole trilogy at once, with a big new push. Woo hoo!

    Or maybe they want to put out an omnibus edition, with the first three books in one big fat version. Woo hoo!

    Or maybe they won’t publish the third book unless they can get their hands on reprint rights for the first and second.

    This happens a lot.

    Another publisher could exploit those rights much better than a simple POD in perpetuity…

  16. WinterRose said:

    That’s awful! I can only hope that other publishers realize how wrong this is and don’t follow in S&S’s footsteps. That, and I hope that S&S will come to their senses and revert their contracts to the way they were…

  17. Anonymous said:

    Congrats on your new client! I was cruising his blog and found a link to you. He’s ecstatic to have found such a great agent, considering all the offers he waded through! Sounds like you two will be a great match!

  18. JR said:

    Kristin, didn’t Harper Collins do something similar to this in a rights grab not long ago–and that is exactly what I would term this. It is an outright rights grab.

    Very upsetting.