It’s not uncommon for authors to realize that if they were to self-publish backlist titles with new marketing strategies, they could give old books new life and rack up some sales. However, before authors start devising new covers and launching social-media campaigns, they will have to get reversion of rights from the original publishers of their books.
If the rights to publish a book belong to a publishing house, one of the main ways for authors to regain those rights is by claiming the out-of-print or reversion of rights clause in their contracts. This clause varies from publisher to publisher, and may state that rights revert to authors when sales drop below a minimum amount—perhaps 10 copies in the previous six months—or when books go out of print for an extended period of time.
If a book meets the contracted reversion stipulations, the author should send a letter to the publisher stating her name, the book’s title, its publication date, and date on which the contract was signed. Additionally, the author should explain specifically how the book meets the reversion stipulations.
Unfortunately, reversion is not usually this simple. Though publishers define it differently, in many cases a book is considered out of print when it is no longer commercially available. This can create trouble for authors who signed contracts prior to the rise of e-books, which allow titles to technically remain available indefinitely.
“In the age of e-books, the publishers are holding onto rights as long as the book is available in digital form so as to be able to fill an order by POD or digital delivery,” says Steve Gillen, a partner with intellectual property law firm Wood Herron & Evans.
In this sort of situation, authors may want to reach out directly to publishers to ask if rights can be reverted. If asked politely, publishers are often willing to oblige, according to Lloyd Jassin, a lawyer who specializes in publishing and intellectual property issues and runs the website copylaw.org.
“My advice is to read the out-of-print clause carefully,” says Jassin.
When books do not meet contracted reversion terms, authors can write publishers explaining their situation and requesting reversions. It may be worthwhile to get the assistance of an attorney to prepare requests or read drafts before sending. Additionally, in cases when a publisher has defaulted on its obligations, the company will have a period of time—often 30 days—in which to remedy this or else have rights automatically revert back to the author.
Another reversion of rights option is what Jassin calls the “reset button” in the Copyright Act, which allows authors or their descendants to regain rights to books registered with the Copyright Office or published before 1978.
“Those works are entitled to protection 95 years from the date copyright,” explains Jassin. “However, there is something known as the termination window -- a five year period 56 years after registration or publication, whichever is earlier, in which you can serve a notice of termination on a publisher, or publisher's successor.”
For authors who signed contracts—for books that are not works for hire—after January 1, 1978, publishing contracts are eligible for termination 35 years later, as long as authors send notices of termination to publishers and record them with the Copyright Office. “Congress didn't make it easy to get back rights, so, expect to pay for an attorney's time to review, analyze, and file a notice of termination on your behalf,” Jassin cautions.
Of course, the best solution to the problem of reversion of rights is to avoid it from the outset: authors should set specific rights of reversion when contracts are first drafted.
“Insist at the outset that the agreement precisely define when the work must be reverted—and not leave this to the discretion of the publisher—and make the reversion process as automatic as it can possibly be,” says Gillen.