May 24- May 31, 2007 Edition

Agents Join Guild

In Opposing S&S

Digital Rights Terms

NEW YORK, NY/5/21/07–The Authors Guild last week issued an alert to its members urging them not to sign book publishing contracts with Simon & Schuster and to exclude the publisher from auctions unless S&S agrees to change its contract terms on electronic rights.

The Guild told its members that S&S’s new publishing contract grants the company ownership of a book for the entire length of copyright, whether in print or not, so long as the title is held in the company’s electronic database. Traditionally, rights revert to an author when a book is declared out of print, usually when sales bottom out at a certain previously-agreed upon level. Simon & Schuster’s new contract essentially grants the publisher control of rights for what amounts to the life of the author’s copyright.

According to a Guild press release on May 17, the new contract would allow Simon & Schuster to consider a book in print, and under its exclusive control, so long as it’s available in any form, including through its own in-house database — even if no copies are available to be ordered by traditional bookstores. With the new contract language, the publisher would be able stop printing a book and prevent the author from publishing it with any other house.

Guild executive director Paul Aiken has called S&S’s policy “electronic warehousing of rights,” and some agents are agreeing with him. Several agents have registered their concern in the trade media. Brian DeFiore, head of DeFiore and Company has said rights will never revert back to the author under the new contract. Simon Lipskar of Writers House said the move sounded like a “rights grab.”

In a formal response, Adam Rothberg, Vice President of Communications at Simon & Schuster, issued this statement: "We believe that our contract appropriately addresses the improved technology, increased availability, and higher quality of print on demand books, and reflects the fact that print on demand titles may now be readily purchased by consumers at both online and brick and mortar stores. We are embracing print on demand technology as an unprecedented opportunity for authors and publishers to keep their books alive and available and selling in the marketplace in a way that may not have been previously possible for many authors, and are confident in the long term that it will be a benefit for all concerned. We would also like the author and agent community to know that, when necessary, we have always had good faith negotiations on the subject of reversions, and will continue to on a book-by-book basis."

Most publishers’ contracts contain boilerplate language that allows them to own the rights so long as minimum sales numbers are maintained, often as low as 150 or 250 copies. The standard S&S contract omits that language. In an Associated Press story last week, Guild director Paul Aiken said, “"The problem isn’t what’s in the contract, but what’s not in it,"

Some agents have speculated that the change has a greater impact upon new or lesser known authors than on huge names, since smaller authors have less negotiating power. Big authors might simply negotiate to limit the term of the contract to seven or ten years, rather than for the life of the copyright. Lesser authors wouldn’t have the clout to do so.