This last weekend a friend of a friend contacted me. She was interested in getting her books up on Amazon Kindle. I emailed her with my take on things thinking she wanted to put up new work. She responded that she wanted to put up the books she had published many years ago.
Since I wrote this article on Sunday, I discovered that she had self-pubbed this story years ago, so everything is fine with her situation. But this is still a topic that needs to be addressed
Uh-oh.
I saw a HUGE red flag problem here, and recommended to her that she find an attorney to look over her previous publishing contract. Not just any old attorney will do, she needs a literary or contracts attorney to decipher the legalese.
If you don't know how to find an attorney, contact your local Bar Association. Many agents are also literary attorneys. Hire one for a set fee to take a look at your contract.
*I am NOT an attorney and I don't claim to be one. Nor do I play an attorney on TV, stage or commercials.*
I will be the first to admit that contracts are out of my realm. Period. Many contracts have hidden items in them that can screw the author out of their earning simply because they overlooked that particular clause in the original contract signing.
Here's my take on the situation, thinking worse case scenario:
Just because the rights to a story revert back to you (the author), it doesn't necessarily mean you are in total control of your product (book). The cover illustration and title might be the property of the publishing company. For all the author knows, there might be a clause that the publishing company might revert the rights to the story back to the author, BUT retain control over the characters/names/world.
The stories that she wants to publish had illustrations. Until she can prove herself as the owner of the illustrations, she does NOT own the right to use them. The images may belong to the publishing company or the artist, depending on THEIR contract.
If she used an agent to originally get the book published, that agent might still have a claim to a percentage of the work. But if she has since severed ties with the agent, she needs to look at the AGENCY contract to see if the agent can claim a percentage of her ebook profits. In recent years, many agents have included a perpetuity clause that would still claim monies from the author.
She also planned to use characters, scenes, etc in some new stories that she is writing. BUT depending on HOW the original publishing contract is worded, she might have signed her rights away to those characters, scenes, etc. I know of many writers who have had to relinquish their pseudonyms and their characters when they finished out their contracts with a publishing house. Many times the publisher owns the rights to the next book regardless of what the author wants, which means they can low-ball an offer to the author and the author can't do anything except walk away.
REMEMBER--this is your career. Don't sign a contract without legal consultation. And if you have signed contracts, thoroughly investigate how to get out of the contract and your legal obligations regarding that contract in the event you must break it.
Later, Peeps!
If she gets her rights back, she should be fine for the book, but I'm pretty sure she needs to get a new cover. I have no idea about the illustrations inside. I think it's a good idea to talk to a literary attorney, too.
ReplyDeleteI think there will be many more lawyers and/or agents going this way as a side business, Edie.
ReplyDeleteI have rights back to only three of my books, but one of the things that's kept me from putting them on Kindle is having to figure out the agency issues. I'm no longer with that agent, and I haven't read the contract in a long time. One of these days . . .
ReplyDeleteGreat advice, Margaret.
Happy contract reading, Marilyn! Depending on how slick the agent/agency was while writing the contract, you might be in good shape.
ReplyDeleteOR here's another thought--if you update it and retitle it (you'll probably have to do a new cover design), does it make it a NEW NOVEL?
This comment has been removed by the author.
ReplyDelete(Sorry, so many typos first time I posted this comment, I had to delete and start over!)
ReplyDeleteThis is an excellent blog, Margie. And it's an even BETTER reason for going the self-publishing route from the get-go. I am far more interested in retaining intellectual property rights than in making a ton of money.
Something to think about, isn't it, Jody?
ReplyDeleteI guess the flip side is that self-publishing, blogs, etc has made it more difficult to keep others from 'stealing' your stuff - and perhaps leaving you with little or no legal recourse. Definitely pros and cons both ways.
ReplyDeleteYou would think that having a large publishing company or an agent who is on the ball would nip that sort of stuff in the bud, but I've heard stories. Stories that include publishing houses still selling an author's title (and collecting profits) when the product's rights have reverted back to the author. It's an ugly, ugly world where something for nothing will always have appeal.
ReplyDelete