I’ve been asked a lot in the past few weeks to discuss various contract issues. Most notably about Simon & Schuster and Triskelion’s recent bankruptcy. The reason I didn’t get on board with the Simon & Schuster discussion was that I felt everyone else was handling it very well. I know Kristin Nelson did a post on the subject as did every news source and most other blogs. However, you asked and you shall receive...
Simon & Schuster
For those of you who have been vacationing in a cave since mid-May here’s the scoop: Simon & Schuster changed their standard contract language to hold perpetual rights to any book contracted. In other words, they would consider a book in print, under exclusive contract with S&S, as long as it’s available in any form, including erights sold only through S&S, whether or not even one copy had sold. Needless to say, authors, agents, and all their perspective organizations were up in arms. I think the real damning thing for S&S was that they claimed this clause was non-negotiable.
The question I’ve been getting a lot lately is whether or not other houses will follow. Well, to some extent houses have been trying this for years. The truth is that when a house buys you they want to hold on to your rights as long as possible. You never know when you’ll become the next Stephen King, and having that backlist can really pay off. It’s up to the agent to negotiate a minimum at which a book is considered in print (either number of copies or amount made within a certain time period).
I’m not going to get into the details of the back-and-forth between S&S and the Authors Guild. The truth is that S&S now agrees to negotiate this point and other publishers will as well. This is a business and in any business each company (whether the Publisher or Author) wants to get the most possible. It’s in your best interest to own everything for as long as necessary. The same goes for the publisher. That’s why it’s our job to negotiate tirelessly to make sure the contract is as fair as possible (and as beneficial to the author). Clauses will always be added and changed to cause an uproar, but thanks to organizations like the Authors Guild and AAR, as well as individual agents and authors, we can always and will always fight back.
Most authors in the romance world know by now that Triskelion publishing announced that it is closing its doors and filing for bankruptcy on July 2. Triskelion was a small press focusing primarily in the romance and women’s fiction market. Obviously this is a mess. A number of authors are caught in the middle, wondering if their rights are reverted to them or if they are stuck in legal limbo.
DearAuthor.com has a great discussion on the issue, but of course I wanted to add my two cents. Keep in mind that I’m not a lawyer, and since each case is different I’m not going to get caught up in a legal discussion of what could, should, or might happen. What I am going to say, quite frankly, is that I would advise most of you to look forward. In all likelihood Triskelion’s creditors are not going to want to spend the time or money to try to republish books or find a publisher for those not yet published. After all, if Triskelion couldn’t make the money off them, why would someone else, and this is a really hard business to make money in (something for all of you thinking of starting a publisher to consider), so wouldn’t it just benefit them to count their losses and walk away? I would think so, but I’m not in their boardrooms.
There is a lot of information out on how to handle this or where to get advice. I believe RWA is actually offering free advice on what authors can do. In the meantime, though, I would consider your Triskelion book, for now anyway, a book that’s tucked away under your bed and work diligently to make your next book even bigger, better, and stronger. It’s frustrating to know that a book you wrote might be stuck in nowhere land for a while, but it’s not going to do you any good to obsess over it. I am sorry for everyone who has to deal with this. It’s never good when things start to spin out of your control.
If you have any specific questions about this, please comment and ask. I’ll check in and try to answer them as best I can.
Thanks so much for the excellent explanation of this. I've been wondering about both of these issues. There is one question I have. If these contracts that Triskelion holds were sold would those who bought the contracts still be required to pay the same royalties to the authors? Thanks again. Have a great weekend.
It depends on the terms of the sale. And again, I am not a lawyer, but yes I anyone buying the company would be responsible for all of that company's debts. Now of course they could just go ahead and cancel most of the contracts in which case the author's would get their rights back, keep any money they've received (if any) and the company would owe them nothing further.
In all honesty though I think there's a pretty slim chance of that. Most publishers would just wait for the Triskelion authors to come to them or snatch up a successful author's next books.
Thanks for the information, Jessica! I really appreciate it. This contract stuff is all pretty foreign to me.
If it helps, I recently got a deal with S&S for two books, and the rights clause DID come up. However, we negotiated and it was changed to a very nice clause after all. Nothing scary in the slightest, and my rights do revert back to me after the publisher ceases to make a certain dollar amount (and not a miniscule one either).
Thanks for the update on S&S. I have been reading about it on Kristin's blog, but hadn't yet heard that they seem to be negotiating after all. Good to know.
What I'm seeing in these posts is the value of an experienced agent. Great information. Please keep it coming and thank.
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