Victoria Strauss -- Contract Alert: Simon & Schuster

Just posted on the Writer's Alerts page of Writer Beware:

The Authors Guild has posted an alert about a troubling change at Simon & Schuster. Apparently the publisher has altered its standard contract to allow it to consider a book in print for as long as the book is available in any form, including the publisher's own electronic database--even if there are no sales.

Traditionally, the AG says, "All major trade publishers have been willing to acknowledge the requirement of some minimum level of economic activity in order for them to retain exclusive rights to a manuscript. Typically, such clauses obligate a publisher to sell a few hundred books a year. Simon & Schuster has been signaling, however, that it will no longer accept a minimum sales threshold." This would potentially allow Simon & Schuster to retain control of the author's rights indefinitely.

For reference, here's the clause acknowledging a "minimum level of economic activity" in my contract with HarperCollins:

If for two consecutive accounting periods neither the Publisher nor a licensee of the Publisher has printed copies of the Work available for sale in the United States, but the Work is available for sale from the Publisher or a licensee of the Publisher by some means of on-demand printing, or electronic transmission or reproduction and within those two accounting periods, the Publisher and its licensees, collectively, have sold less than 250 copies of the Work, the Work shall be deemed out of print.

So why is it important for works to go out of print?

One of the more persistent writers' myths is that Going Out Of Print Is Always Bad. Books have the shelf life of sliced bread, this bit of received non-wisdom goes; you get four or five months in the stores, and unless you sell in large numbers, you're outta there. A few months later, disgusted by your failure, your publisher will declare your book out of print, after which no one will be able to get hold of it except as a used copy. (This scenario really is a myth; even non-performing books don't go out of print as fast as that--my books sell modestly, and their average in-print life is around four years--and steady sellers can stay in print for years, even decades.) One of the supposed advantages of digital and electronic publishing is that, because there's no inventory, publishers can afford to keep books in print and available "forever."

But forever isn't good if the publisher isn't promoting the book. Why should publishers have control over books they aren't marketing and selling? If your book is no longer available for order or download, or if its availability is limited (for instance, if there are no print copies that can be ordered by stores and the book exists only in an electronic edition), or if it's still available but few or no copies are selling, you're better off if the publisher takes it out of print, allowing you to revert the rights and regain control of them. Perhaps you can do something else with them--re-sell them, for instance (this is difficult, but not impossible), or publish through a service like the Authors Guild's Back in Print program, which allows authors to bring out-of-print books back into circulation. Even if you wind up simply holding on to the rights, it's better than letting your book languish in the publisher's vault.

(This is why it's important, if you're thinking of going with a digital or electronic publisher, to look for time-limited contracts, or, if the publisher uses life-of-copyright language, to make sure that it's balanced by a detailed and specific out of print/rights reversion clause that includes provisions like the example I gave above.)

What's the purpose behind S&S's new policy? I'm guessing that S&S is gambling that electronic rights will become hugely valuable at some point in the future. Right now they aren't, and I don't believe that anyone, even the most vigorous prognosticators, knows how or in what ways they may become so. But with its rights grab, S&S is hedging its bets, retaining control of books it may be able to exploit in new ways as times change and new technology becomes available. In this situation, authors are double losers--first, because they lose control of their rights forever, and second, because if S&S does exploit the rights at some future point, it will be doing so under old contracts. As the development of the ebook market has made clear, new technologies demand new terms and new negotiations.

S&S is certainly not alone in its hopes for the future. Unless outcry by authors and agents forces a change--and there is plenty of uproar right now--look for similar policies from other publishers not too long from now.

The Authors Guild cautions authors to carefully consider their options in regard to S&S:

1. Remember that if you sign a contract with Simon & Schuster that includes this clause, they’ll say you’re wed to them. Your book will live and die with this particular conglomerate.

2. Ask your agent to explore other options. Other publishers are not seeking an irrevocable grant of rights. [Though some authors are saying that Bertlesmann recently implemented a similar policy.]

3. If you have a manuscript that may be auctioned, consider asking your agent to exclude Simon & Schuster imprints unless they agree before the auction to use industry standard terms.