Michael Gross is director of legal services at the Authors Guild, Inc., a professional organization founded in 1912 to protect the interests of writers in copyright, fair contracts, and free expression.
CMOS: During your years at Authors Guild, has the typical book contract changed in significant ways?
MG: Yes. In my nineteen years at the Guild, the book industry, and specifically book publishing contracts, have certainly changed significantly. When I first started in 1999, the internet was not widely used, the electronic market was in its infancy stage, and most book contracts barely addressed electronic rights or audiobook rights at all. Up until the early 2000s, publishers were largely only concerned about print rights. However, in the last twenty years e-book rights, and to a lesser extent, audiobook rights, have risen to the forefront along with print rights, and publishers often seek exclusive control over print, e-book, and audiobook rights in the primary grant of rights.
Moreover, print-on-demand (POD) technology, which allows publishers to print single copies of a book at will, was in its infancy stage. Nowadays, the age of the traditional print run is virtually gone; many publishers offer books only as e-books or POD books. This has led to other contractual issues that were never present before.
CMOS: Can you give an example of a relatively new issue that publishers and writers are still trying to figure out?
MG: The most troubling new issue is deciding when a work is truly out of print. Prior to the electronic age, it was very easy to discern whether a book was in print or out of print, as most books were only available in physical print book form. Either there were copies left or there were not copies left. However, with POD books, e-books, and digital audiobooks becoming mainstream modes of publication, whether a book is “in print” has become far more tricky, since a publisher can make a POD book, e-book, or digital audiobook available on sites like Amazon in perpetuity at no cost to itself.
Accordingly, authors have had an increasingly difficult time securing reversions of rights due to the existence of digital copies. Moreover, many of the older contracts’ out-of-print clauses never addressed whether the existence of an e-book version (if the publisher controlled e-book rights) qualified the book as being “in print.” Many of the old contracts merely stipulated that if the work was available for sale, it was in print. However, those publishers were really only focused on print copies, not electronic copies, so you can imagine the immense frustration when authors attempt to get their rights back because they are earning next to nothing from book sales, but are ultimately denied because the book is available as an e-book or POD book.
CMOS: In practical terms, are the rights to a book that’s not selling worth very much? Would most authors have the resources to market and sell the book any better than the publisher is already doing?
MG: Yes, I feel very strongly that an author can do as good a job if not a better job marketing the work than most publishers, especially since many publishers do very little to begin with. Once a work goes out of print, which is often within three to five years after initial publication, the authors should be able to get the rights back, since most publishers won’t do anything to try to revive the market for the work. At that point, any publicity the author pays for or does on their own will be at their own expense anyway, so it is only fair that they reap the full benefit of their efforts if they choose to self-publish. The Guild has a Backinprint Program where members can make their out-of-print books available for sale again via POD, e-book, and audiobook. I know some authors have done well for themselves in this program, so there is definitely hope after rights are reverted.
Mary Rasenberger and James Gleick, executive director and president of Authors Guild, field questions at the 2018 Authors Guild Annual Meeting.
CMOS: What do you see as the most common ways in which book contracts confuse writers?
MG: I think writers are most confused by the “out-of-print” provisions that I just mentioned. I also think many authors get confused by the royalty provisions, as some publishing contracts provide a number of allowances for publishers to pay lesser royalties on certain categories of book sales, such as books sold at a deep discount and exported books.
Finally, many authors have questions and concerns over the “warranties and indemnities” provisions, since an author is often held completely liable with no monetary cap if they breach one of the warranties they make in the publishing agreement. Whether they should obtain their own insurance is often a big issue for many writers if their publishers won’t cover them under their own policies.
CMOS: When writers assert themselves by adding language or querying a clause in a contract, do they endanger the negotiation?
MG: In most cases, no. Publishers expect authors to at least attempt to negotiate their agreements. While a particular publisher may not concede to the author’s particular demand, it will not abandon the deal in most cases.
CMOS: Is the author likely to get what they want?
MG: They might! Publishers who are completely unwilling to negotiate their agreements and rescind offers to authors who attempt to negotiate with them are publishers I recommend avoiding.
CMOS: What’s the most outrageous clause you’ve encountered in a book contract?
MG: There are so many outrageous clauses and bad contracts it would be impossible to focus on one writer or one situation. A lot of hybrid publishers have contract forms that are highly skewed in the publisher’s favor, more so than we have seen in traditional publishing. That—and the fact that a lot of authors are now paying publishers to publish books—often results in conflict. A number of Guild members who have gone this route have had difficult experiences with some of the newer hybrid publishers, with their particular gripes stemming from the quality of the books produced. Until this particular segment of the industry matures and the contract forms become somewhat standard, the most important thing an author can do is research the publisher in depth by reading others’ experiences online and talking to other authors.
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Photo of Michael Gross by John Halpern; photo of Mary Rasenberger and James Gleick by Aslan Chalom.
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