While wearing my publishing lawyer hat, authors often ask me about how to terminate an old (or unprofitable) publishing contract and obtain a reversion of their rights to the relevant works.
Obtaining a reversion of rights can be tricky, and is always dependent on the terms of the contract (and/or the author's relationship with the publisher).
Normally, the contract states the terms--if any--under which an author can terminate or obtain a reversion of publishing rights, and if the conditions in the contract are not met, the author cannot terminate unless the publisher is willing to release the rights.
However, the fact that a work is under contract isn't always the end of the story.
Here are the recommended steps for authors hoping to terminate a contract or obtain a reversion of publishing rights from a traditional publishing house:*
1. Review the Contact.
In almost all cases, the contract will state exactly when and how (and by whom) it can be terminated.
If the contract allows you to terminate under the current circumstances, follow the procedures in the contract to request a termination and reversion of your rights. (Note: if you only want to revert certain rights--for example, foreign translations--follow the procedures for requesting those rights only.)
If you have questions, or don’t understand the contract, get help from a publishing lawyer or a literary agent.
2. Ask the Publisher (Nicely) to Terminate the Contract and/or Revert the Rights.
By law, the parties to a contract can always modify or terminate their agreement by mutual consent, even if the contract doesn’t say so.
If the contract doesn’t grant you the right to terminate, you can still ask the publisher to terminate the contract and revert your rights voluntarily. Some publishers will agree to termination, or reversion of certain rights, when sales have dropped so low that keeping a work in print creates more obligations than benefits. Make sure your request is polite and professional—regardless of your relationship with (or opinion of) the publisher.
As my grandmother used to say, you catch more flies with honey than you do with vinegar.
3. Consult a Publishing Attorney or Literary Agent.
If the contract doesn’t grant you termination rights and the publisher refuses your polite request for termination (or reversion of certain rights), seek the advice of a publishing attorney or agent. Sometimes a third party can help negotiate solutions that authors cannot obtain on their own behalf.
However, be aware that in most cases your right to terminate a contract and obtain a reversion of publishing rights is limited by the terms of the agreement. Unless the publisher breaches the contract, you may have no choice but to wait the contract out.
Which brings us to one final, forward-looking step:
4. Ensure all Future Contracts Give You Unilateral Termination Rights and Out of Print Clauses Tied to Royalty-Bearing Sales.
Admittedly, this doesn't help you with the old agreement, but it will ensure you don’t end up in the same situation again.
Tying out of print status to royalty-bearing sales, and giving the author the unilateral right to terminate if the work goes out of print, helps ensure that authors can retrieve their rights if a book stops selling (and stops a publisher from keeping works perpetually “in print” simply by listing ebooks on Amazon).
When it comes to publishing contracts, the best defense is a good offense—negotiating unilateral termination rights and reversion clauses into the agreement before you sign.
*Note: These tips apply only to traditional publishers, and in situations where the publisher is NOT in breach of contract. If the publisher IS in breach of contract, consult a lawyer or literary agent immediately.
Note also: Author-publishers should always be able to terminate any contracts or publishing arrangements at will, subject to payment of fees owed and other pre-existing legal arrangements. If you self-publish, make sure your contracts give you all the power when it comes to termination.