To start off with, I should say that I gave this blog its title before I heard about the shameful business involving Amélie Wen Zhao. Now that really is a publishing nightmare. Suffice to say that what happened to me was bad enough, and the kind of thing that befalls a lot of aspiring authors, as you will find out if you read on. As before, my mistakes are in bold, and passages of direct advice are bulleted.
Part one of this blog series talked about how I signed a contract that I shouldn’t have with a publisher who didn’t do the best for my book, and the disappointing way that it played out. The real fun started when I decided I wanted out of the contract.
Reader – it was a really, really bad contract.
The contract was basically full of holes and contradictions. There were clauses that seemed fine in themselves, but when combined with other aspects of the contract, or even when related to things that weren’t said, meant that I was in serious difficulty if I ever wanted to regain my rights.
- The lesson here is that however sound your contract appears to be, if you don’t have specialist publishing law knowledge (and knowledge relevant to the legal environment where your publisher is based), then you just don’t know what problems you might be storing up for yourself.
At the end of the last blogpost, I raised the issue of what it meant for the book to be ‘in print’. For the record, my contract stated:
“This Agreement shall be in effect from the date hereof until the expiration of all copyrights in the Work, unless:
(b) Following publication, all editions of the Work shall be out of print for a period of two (2) years, in which case, Author may terminate this agreement by giving Publisher six (6) months written notice of termination effective at the end of such six (6) months if, as the case may be, the Work shall not have been so published or Publisher or licensee of Publisher shall not have initiated a reprint of any edition of the work within such six (6) months period. Upon the effective date of such notice of termination, all rights hereunder shall revert to Author without further notice.”
What is clear in traditional publishing becomes opaque when you enter the more recent environment of ebooks and print-on-demand. The Society of Authors has been campaigning for clarity around this for some years, as it can be a real minefield. Different publishers have different definitions, but most agree that there is some ‘cut-off’ point at which the book is considered to have fallen out of print, usually by level of sales. That makes sense, doesn’t it? Surely a book cannot be considered to be in print if a single ebook or PoD paperback has been sold in the last two years, as my contract appeared to imply?
There was indeed nothing in the contract itself to say what ‘out of print’ meant. Theoretically as long as a copy had been sold in the last two years, the publisher could effectively hang onto the rights without doing any work. If I wanted to recover the rights in a reasonable period, I would be relying on the publisher to deign to agree with me on what grounds.
- Do. Your. Homework
There was no other indication in the contract of how the author might recover their rights short of the publisher going bust. (At least this was one area where the contract was better than some others – often they include clauses that allow the contracts to be sold on in the event that the publisher goes out of business). As we left things at the end of Part 1, the publisher had evaded my questions about what they considered ‘out of print’ to mean.
…And as it turned out, the publisher interpreted the contract in an even more problematic manner than I feared. But I will come back to that.
Another clause that had started to worry me didn’t even relate to the book covered by the contract. It stated that I should not write a book that competed with the novel concerned here – but if I did, the publisher would have the right of first refusal. The SoA was somewhat mystified by this. They told me that in UK publishing, the ‘competitive book’ clause more usually relates to non-fiction publishing, and is intended to stop people repackaging the same material for a different publisher. They felt that two common clauses – 1) don’t write a book that will compete directly with this one, and 2) if you write any related books we get first refusal – had been somehow combined, and the result was nonsensical; telling me not to do something, and then telling me what to do if I did it anyway.
I understand that the language of a ‘competitive book’ is much more common in the country where the book was published, and it more or less means any similar title – a book covering similar ground, a sequel, or a book set in the same ‘universe’.
I was concerned about this, but the way the clause was phrased meant that it should be unenforceable in any reasonable court, anywhere in the world. (I gather that if a clause is ambiguous, it should be interpreted in favour of the author). Nevertheless, if interpreted in a certain way, the clause potentially tied me to the publisher for future books. I now really wanted to get out of the contract, so I said as much to the publisher. They’d raised the issue of my leaving, after all. Perhaps they would just let me go.
No. The publisher said they had no intention of reverting the rights and instead admonished me for not doing enough to market my book. Their evidence for this assertion was that I had not ordered any copies at cost price for a while. This was true, as I had found it to be a bad way to market the book. I had ended up going to events that took up a whole day and sold only one or two copies for little or no profit on each book sold. I reasoned that if I’d spent that day on online marketing activities, I’d have reached far more people. And in any case, I had not stopped marketing the book by any means – in fact I continued activities like writing guest blogs, appearing on podcasts and doing interviews for a couple of years after the book came out. But the fact remained that you could never make up ground lost during an ill-considered, perfunctory launch period, or compensate for a lack of reviews early on in the books career.
(As an aside, this attitude further suggested that the publisher knew little about what it actually took to make money from a book. The economics of selling books to authors at cost mean, naturally, that the publisher makes little to nothing from these sales – all the profit, if there is any, goes to the author, and of course the distribution company for shipping the copies. Part of the trouble with this approach was that while the ebook was priced reasonably competitively, the hard copy was not. Many people these days are unwilling to spend upwards of £12 on a paperback from an author they’ve never heard of, and even less so when the cover is unattractive – see Part 1. The result of this was that to sell any books at all, I had to sell them at what they’d cost me. All in all, I found it to be a very bad way to help my book reach readers).
After I asked repeatedly, over a period of many months, the publisher finally admitted that as far as they were concerned, if the book was available to buy, they considered it to be in print. This made a complete nonsense of the two-year out-of-print period, as an ebook or PoD need never be unavailable while the publisher wished to hold on to the title. My book would therefore fall out of print two years after never. Or, generously, two years after the publisher decided they didn’t want it any more.
They suggested that if I wanted the book to do better, it was up to me to promote it better.
If, however, I insisted on leaving, I was told that as my book had cost them the equivalent of about £2,000 to produce (more at that time, actually, thanks to the exchange rate), they would transfer the rights back to me if I paid them this amount.
I didn’t think this was reasonable, or even legal. A severance fee certainly wasn’t in the contract. It felt like extortion. I took this back to the SoA. They were sympathetic, but could advise little in the way of practical action, other than to confirm to me that if there was no severance fee mentioned in the contract, there was no legal basis to require me to pay to get out of it. If I chose to do so voluntarily, however, that was up to me, and practically, I was advised it might be the only way out of the contract.
I let things go for a while, despairing of getting my book back and mindful that the mental drain of the dispute was robbing me of time and energy to write more books. I had started work on a sequel, but could not bring myself to carry on with it. I didn’t want another of my books to go to that publisher, and the contract suggested I might have no choice but to offer it to them. And who would want to publish the sequel to a book no-one had read in the first place?
Then, the publisher started getting late with payments. Royalty statements were generally overdue, or missing altogether. I heard from other authors that they were experiencing the same thing. It got to the point where a series of gentle and less gentle reminders had to be sent every time a royalty period came and inevitably went with no royalties or statement. Although the royalties and statements generally turned up eventually, the publisher was now in clear breach of contract, which was at least clear about when payments should be made. The publisher started sending round a newsletter to authors, which generally consisted of exhortations for them to do more to sell their books. I and several other authors asked to stop receiving these. I had had enough, and the behaviour renewed my determination to get my book back.
I went back to the SoA. They gave me their view on it, and contacted their equivalent in the country where the publisher was based. They didn’t actually have to do this, it was above and beyond what was required of them.
- The SoA really does have authors’ backs, but they are limited to the extent to which they can help when you’ve already signed yourself into a corner. They can do most before you’ve signed the contract, helping you avoid getting into that situation in the first place.
What the SoA told me equated to this: that the publisher’s breach of contract meant precisely nothing.
Among the numerous omissions in the contract was any stipulation of what should if the contract was breached by either party. Effectively, to prove that the contract had been breached, and to decide what to do about it, a court would have to intervene. The authors’ association in the publisher’s country told me that I would need to sue the publisher for breach of contract, win, and hope the court terminated the agreement – which was by no means inevitable even if I did win. They might just order that the publisher rectify the breaches and, perhaps, compensate me. But I would still be tied into the bad contract.
The SoA added that taking legal action in another jurisdiction would be ‘prohibitively expensive’ – if it was even possible. That’s right – you might not actually be able to take legal action against a publisher in another country, even if they drive a coach and horses through their own contract.
A few people said to me at this point, ‘why don’t you just break the contract yourself?’ They had a point, didn’t they? There were a number of reasons why I didn’t regard this as a solution. For a start, I didn’t want to be in the wrong (and in publishing, as in life, two wrongs don’t make a right). Then there was the fact that the publisher, although small, was probably more powerful than I was on my own. What if they chose to sue me? What if I got a reputation among other publishers as a troublemaker, a litigation risk?
Most importantly though, the publisher simply held all the cards. On their side, a breach of the contract meant they could go on publishing my book without consequence. On my side, breaking the contract could more or less only be done by my self-publishing the book. No publisher would publish a book that was already published, whatever the rights and wrongs. No agent would look at it either. Indeed, the lack of success of the book (at that point it had sold in the region of 130 copies, including those I had bought for bookshops and events) was a good reason for them not to consider it. I still had around 20-30 copies sitting in shops, which weren’t selling. I had my theories about this – the bad cover that failed to catch the eye, the high cost of print-on-demand paperbacks, the way the book was presented as not quite one thing or another, genre-wise. But there was no way of knowing, and in any event, I was out of pocket by hundreds of pounds. Even if I self-published it, the original would still be on sale and in competition. (As a comparison, my first nonfiction book sold out its initial print run of 1,500 copies and was reprinted – and the reprint has since sold out).
So I was in a situation where the book was barely selling, and the publisher wouldn’t release my rights. If I wanted to get them back I would have to pay a fortune to hire a lawyer who was familiar with the law in that jurisdiction, if it was even legal for me to do so. Or I could go back to the buyout deal, try to negotiate perhaps, but I doubted that would help as they knew they held all the cards. Why would they talk themselves out of money?
The worst thing – the thing that prompted me to write this series of blogs – was the initial comment from the representative of one of the authors’ associations:
Unfortunately, I see this happening a lot
Fortunately, an opportunity presented itself.
To be continued