Hugh Howey
Hugh Howey

Bestselling author of Wool and other books. Currently sailing around the world.

This Needs to Change

Of all the myriad disruptions in the publishing world over the last few decades, perhaps none are as powerful as the new permanence of the written word. Every book now has the power to stay in print and on sale for the rest of time. Not just the blockbusters, the instant classics, or the works from the biggest names—but all books.

Print on demand technology now allows a paperback to be spit out of a machine in mere minutes. The quality of print on demand books is better than those acid-paper Penguin Classics of yore, and the quality is only improving. Ebooks, of course, never run out, and they can be easily updated over time. Both editions sit on product page “shelves” that never collect dust, and these books never need returning. At any moment, a book written years ago can be “discovered” and crawl up bestseller lists.

I have already heard from writers who self-published, gave up on their careers, and then saw money hit their bank accounts. Books they no longer tended to had become bestsellers over time and with no promotion, and now these writers are engaged with their passion again. I learned about this after writing a post on KBoards predicting we might see this happen some years from now. I was informed that it is already happening.

The full effect of book permanence probably won’t be appreciated for another ten or twenty years. But we should start thinking about it now. Because copyright, contracts, and advances were created for an old model that no longer exists. Is there any possible way to defend a $5,000 advance for the lifetime rights to a work that can never go out of print? The standard term of copyright is the life of the author plus seventy years!

This is absolutely indefensible. It should cost much more to strip away ownership of a work of art for that length of time. One of three things needs to happen in book contracts, and immediately:

  1. We need a hard cap on the number of years in a term of license.
  2. We need to set price minimums for a life + 70 term.
  3. We need reversion clauses to move to a minimum wage.

Most foreign publishers set terms of license between 3 and 10 years, after which the author gets the rights back, no matter how well the title is selling. These terms are possible in the US. One of my contracts with a Big 5 publisher has a hard 7 year term, after which my rights are returned. Every publishing contract should have this as a possibility. It’s something that should be open for negotiation for authors at all stages of their careers.

The alternative to this would be a minimum advance for lifetime rights. I’d be happy with a low limit, like $100,000. That might still be cheap for the rights to a work that will never go out of print, but at least it would force publishers to offer a limited term of license to debuting and midlist authors who might not command a 6-figure advance. Of course, a higher price minimum of $500,000 to $1,000,000 would be preferable.

The final option is one I first saw from The Passive Guy, and that’s to get rid of outdated reversion clauses based on units sold and move to a minimum wage reversion clause. Reversion terms today are laughable. From a Big 5 publishers, I’ve seen a boilerplate reversion clause of 150 units over three accounting periods. That means, as long as the title sells 150 copies in any format in a year and a half, the publisher retains the rights to that work.

Clauses like these were ridiculous in the age in which they were written, but now they’ve become abusive. When books could go out of print, such low sales targets still worked to some degree. Now, a publisher could lower the price of an ebook to 99 cents, sell a couple hundred copies (or buy them internally), and retain ownership.

It’s not a question of whether or not publishers would do this but that they are not contractually forbidden from doing it. Contracts exist to protect parties from “what ifs.” A minimum wage reversion clause means an author and agent will know what their income will be in this age of variably priced, free to “print,” ebooks. The clause might stipulate that if an author does not earn $3,000 in royalties over any six-month period, the author gets the rights back at the end of that period (or the publisher is allowed a grace period to do something to boost sales).

There are several ways to handle term of copyright in an age of book permanence, and there are precedents for these solutions in foreign contracts and in some domestic ones as well. The problem is that agents and authors don’t demand these changes and stick to their guns. With the Big 5’s near-monopoly on chain bookstore distribution, there haven’t been alternatives to onerous contracts. You took what was offered, because the offer around the corner was going to look identical in every meaningful way.

The only people with leverage to get better terms are those authors who no longer need the protection. This is where self-publishing and platforms like Amazon and Kobo are a boon not just to indie authors but to all authors. When agents start advising clients to hold out for limited terms of license—and to self-publish if they can’t get these terms—contracts will improve for all writers.

In the end, we may not need an Authors’ Guild fighting for our rights. It sure would be nice to have them in our corner instead of the publishers’ corner, but now that the book industry has a true competitive force—and now that authors have real options—change is going to happen. We just need to start demanding it.

40 replies to “This Needs to Change”

That’s true. But the shift would be painful. It’s a little bit of an integral-like problem. Thousands (millions?) of authors had already signed the life+70 contracts so “clearing the market” would take around 120-180 years. I’m pretty sure that companies don’t like to think in such vide horizonts.

However, it shouldn’t stop people from starting changes now. Even a 180-years-long process must start one day, right?

“The alternative to this would be a minimum advance for lifetime rights. I’d be happy with a low limit, like $100,000.”

Hugh,

This is entirely unrealistic for two reasons.

1. This isn’t that low. If a book takes a year to write (and it should take less!) then $100,000 for that time is ample, not low. Equally $500,000 or $1,000,000 is an absurd suggestion. If you compare that to the margins many small presses work on, you’d essentially end competition outside the big five.

2. This sort of limit would require a legal framework. All that would happen is that contracts that would have gone to US authors would go to Australian or British authors. There’s no way you’d get a global framework –

A minimum wage is more sensible – but even here, you’d have to think about bucket accounting. What if a small press has rights to ten of an author’s titles, and the author has an above-average income overall but one title in the set (potentially even a series) doesn’t hit the threshold? Should we bundle rights for series?

Or perhaps there’s a third way entirely – we simply acknowledge that licences and royalties are a poor system that could be replaced with a simple money-for-copyright deal. If you pay me for lfietime rights, it’s practically copyright assignment anyway so let’s just be honest about it, skip the onerous burden of accounting and fudged statements and reserves against returns and just agree a deal up front – your money for my IP. If I don’t like the amount I can say no, take it elsewhere or self publish. This would be more efficient all around, and it shifts the risk from the author onto the publisher. The publisher, after all, is apparently the great sifter able to spot the literature from the slush. If that’s the ability then they won’t mind taking all the risk.

The book took a year to write, but it has ~120 years to be leveraged. That amount is just to guarantee either a high sum for the work performed or a limited term of license.

The film industry does something similar. You might get $5,000 or $50,000 for an 18 month option, but the purchase price for lifetime rights will be much higher. (Of course, some people sell options for $500 and sell full rights for $5,000, but the point remains that limited ownership costs less than full ownership, as it should be.)

But if we’re arguing for fair pay, how can we say $100,000 isn’t fair? Yes, rights last a long time – but if an author drops dead the day after, it’s 70 years… and most of the revenue is front loaded in print. We all know eBooks are relatively forever, but we can’t possibly guess what sales will be like in 20, 30, 40, 50+ years.

Even today the Kindle Unlimited announcement means readers might well shift to a ‘within Amazon’ subscription model. Who knows what impact that will have (though I suspect Spotify might provide a clue)?

The film industry is an interesting analogy, but they get to remove a degree of risk by buying rights for something with a pre-existing fan base. 18 months to exercise isn’t unreasonable because it’s not 18 months to recoup all investment (of which rights are going to be a very minor part compared to cast costs). A film can sell as a DVD, to a streaming service, via on demand and in the cinema. The result is protected, yet again, by copyright.

Should full ownership cost more? Absolutely. The same could be said for renting a house versus buying it. But if purportedly limited rights aren’t actually limited then it’s more honest to treat things as a one off transaction.

Authors need to be willing to take some responsibility for what they sign. I’m not defending the poor deals legacy publishers offer, but there has to be a risk/reward trade off. It’s not all that different to start up companies – you buy the one with the best legs where the owner has skin in the game. Sometimes you win, sometimes you don’t. But the entrepreneur/ author can still fund things in a different way – loans, angel investment, crowd funding, their own cash etc.

Authors have more choice, more leverage and more power than at any other time in history. But noone asked us to write books. We choose to do it. As (mostly) adults, we have to take responsibility for using that time in the way we chose to spend it.

If you think you can make a better return using less rights, why not go into competition? Get the business plan drawn up, see how the numbers figure out and then go beat the big 5 with a big stick.

Sean, I agree that writers need to take responsibility for what they sign. However, before Amazon, the choice was largely “Sign here and you’ll be published; don’t sign and you won’t.” Certainly you could take your manuscript to a different publisher if you refused to sign — but that publisher would offer similar terms.

We now have the option of refusing the contract and putting our work out there ourselves. A friend of mine who has yet to sell her first novel refused a publishing deal with a small-press publisher because there was a lifetime-of-the-book clause in the contract. She is still pursuing the traditional-publisher route, but something that made her decision to refuse the contract much easier was, she felt that if another publisher didn’t give her better terms, she could go it alone.

I like to think I’m setting an example for her. 8^)

Hugh, I love that you’re optimistic but…

It’s amazing that an organisation or rather organisations will stubbornly continue to be their own detriment. Instead of doing what is right and fair (and will likely save their future), they continue with their draconian methods. It’s insane! Why do they believe in these clauses?

I am a Pub Rants Alum, from the time it was on blogspot. And from way back then, Kristin was educating everyone who would care to read on publishing contracts. And it was always amazing to see the lengths these publishers would go to be devious( or you can afford them the benefit of the doubt). They would hide certain terms within terms so the true meaning would be lost on you. Or just a single word would change the whole meaning of a clause, so while you’re thinking you’re sign this, you’re signing that. And of course Super-Agent Kristin always found them.

It goes without saying she’s an awesome agent. I truly believe she gets self-publishing because of her own story. Getting out of a job you didn’t love to do something that you love. Doing what it takes to succeed. Having a long term plan and not giving up when it becomes a longer term plan.

She always had her writer’s back – don’t let that bright smile fool you, she is tough. Kristin even blogged about agents’ contracts, so that you aren’t binding yourself to an undesirable deal. She has always been my dream agent ( in the event that I actually need one) but I know she accepts only 2-3 clients in a good year.

Kristin was one of the first persons who blogged about the initial rumblings in the publishing industry. Publishers would like to blame Amazon for their upcoming demise but that business structure was having problems before Kindle. But instead of grabbing the lifeline…

One more thing in 2006 (yup 2006) Kristin said this on her blog: “If you go the e-publishing route, be sure to get a reversion clause in your contract so the rights will revert back to you after a certain amount of time or volume of sales etc. You don’t want the e-rights held into forever. In a phrase, that would be bad.” In 2014, this should be applied to all rights.

Hugh,

Why do you care about an out-dated publishing industry, you of all people who made a fortune self-publishing ? That’s like discussing with personnel on the Titanic after it hit the iceberg. Let them do what they think is right, agency pricing, bad contracts etc. — if they keep doing it, more and more authors are going to leave their boat. It’s the same conflict between old tradition versus progress.
They’re like Kodak, dominating the industry in the past while failing to adapt to today. At one point, they’re going to super-merge (the big two) and / or go bankrupt, and then newer companies and indies will replace them.

Because he cares about authors in general. Not only about self-publishing/indie ones. And he cares about readers too, even Big5 books readers.

He cares because we could make better money working with publishers rather than just self-pubbing. By only self-pubbing, we’re leaving a huge market behind. It’s not just B&N, but Wal-Mart, Costco, Sams, Walgreens, CVC, and every indie bookseller and other retailer who carries books. If you think those don’t matter, then you’re underestimating the power of impulse buyers. Paper books may be diminishing, but they’re far from dead.

I know of authors who haven’t gotten their rights reverted to them because their publishers consider an ebook version “still in print”.

There will be lawsuits. And any publishing lawyer worth his salt will be able to poke holes in a contract like that.

Basically, the best way to change the industry is to walk away from it.

For one, demand a time limit on a contract. For me it is six years. I figure the average shelf life of a decent book is about three years from when it first appears on the shelves until the next good book comes out and supplants it. I figure if a publisher can’t get the book to sell in six years, then it is probably best to stop doing business. If the book does well and becomes a hit, then we can renegotiate the terms of the next contract for that book for the next period of years.

Also, if they want multiple books, your advance should be $X per book per year. The publisher needs to be motivated to make your book sell. (I wonder how many book contracts got signed because the publisher actually didn’t want Author-A’s book to compete with Author-B who was already the top writer in their stable, and Author-A’s book sat on an editor’s desk for years untouched.)

If a publisher says no, then go on to the next publisher and so on. Remember, even if you would rather work through a publisher to handle the messy part of the writing business, you can still always self-publish.

Keep in mind, as much as we deride Big Industry publishers, there are numerous small publishers appearing on the market that are composed of editors who got fed up with the status quo of Big Industry Publishing business practices. These independent publishers—just as we are independent writers—are looking for that new world business formula that could revitalize publishing. Many of these independent publishers may be much more willing to work on terms that are far better for the writing ecosystem than what big industry has become. Truth be told, not every writer has the skills to self-publish. There are some people who may be excellent writers, but cannot do anything else. For this reason, there will always be publishers.

“For me it is six years…If a publisher says no, then go on to the next publisher and so on.”

Such things are doable with small presses, but if you are with the big-five it’s going to be “life of copyright” and some laughable definition of what “in print is.” Well that is unless you have sales at Hugh’s levels. All of the “mere mortals” won’t see anything else so you can “go on” to as many of the big-five you want (as if each one will give you a contract) but none will bite.

Small presses are great, and flexible, but their sales are usually pretty small…and in many cases you will have the same distribution that you could get through self.

Most people don’t seem to know this and the publishers will certainly never tell you, but the Copyright Act includes a way to get your rights back after thirty-five years regardless of what your contract says. I just did a post on it, but here’s a much better post on it: http://dearauthor.com/features/reclaiming-your-copyright-after-thirty-five-years/
It’s not a quick fix and you shouldn’t even think about attempting it without an experienced copyright attorney, but if you’ve signed a “life of copyright” clause and can’t find any other way out, here’s an escape hatch.

You are absolutely right….but even 35 years is a very long time. I believe the first books that will be “eligible” for this are the ones published in 1975 so I expect to see a lot of versions based on this loophole.

Traditional publishing is a BUYER’S Market: they control everything, and sellers have little real power (except for the elite few who have been anointed).

Sellers (writers) don’t get to just try another publisher – the odds of getting an offered contract from ANY publisher are like winning the lottery; it isn’t going to happen repeatedly for the vast majority.

And people using ‘holes’ in their contracts to get out of said contracts only make the next version of contracts more airtight (all those lawyers working for the publishers are actually listening).

The basic issue is trust: as more and more authors find out that they can’t trust their publishing partners (or why else are they terrified of speaking out about the abuse?), they need to leave the abusive relationship (if they can). It is going to be long, drawn out, and painful.

I, for one, don’t think traditional publishing is fixable. For every patch here on ‘trust,’ another ten little leaks are occurring somewhere else.

Thanks for publicizing the details. I hope I never have to depend on BP. They are revealed every day as more evil (as a system – and as people who do what the system makes them do).

The fundamental flaw in your logic is that you assume that publishers are paying to exploit those rights for the life of the copyright. What they are really paying for, in most cases, is the right to ensure that no one exploits those rights after the first print run. Have you ever heard of a writer who got their rights back and sold fewer copies per year than their publisher?

Very well put Hugh, publishers don’t push old Stephen King books because they are focused on the newer ones, with print you are limited to shelfspace and in competition with yourself too. If King bought some of his rights back, his publisher would be the one who suffered, especailly in 50 years if a new generation finds King again.

I’m always nodding my head in agreement when you describe the future of ebooks and self-publishing. But, like some of the other commenters, I can’t muster enough enthusiasm about fixing contracts with traditional publishers. It’s not because I don’t care about authors. I think it’s because we have different views about the future of traditional publishers. Here’s my view of how it will play out:

E-books will almost completely replace print books. Because ebooks can be distributed costlessly, all books get published. That means there is no need for anyone to read manuscripts and guess in advance what kind of books to print and bring to readers. This was the fundamental role of traditional publishing, and it will no longer exist.

There is still a need for various author services, and a new kind of company will serve those functions. Some companies will offer streamlined editing, covers, formatting and uploading for a flat-fee or a small slice of the profits. Some might offer advances. Some might help with marketing. These new companies (I guess we can call them “publishing” companies) will look and feel like tech startups and will offer all the attractive contracts you have in mind. Traditional publishers are unlikely to adapt and will probably go out of business. After they milk the present for all it’s worth.

I’m guessing that you see a different future for traditional publishers. Would love to know your thoughts.

The important thing is you must be willing to walk away from it if the contract isn’t to your liking. If you are seriously behind the eight ball, that could be pretty tough.

Think of these two phrases:

“I got picked up by a publisher!”

and

“I just hired a publisher!”

Think about the difference. You should be using the second phrase and consider carefully what that means: you are willing to accept a business agreement with a publisher on YOUR terms. You are giving that company a significant amount of money in exchange for them performing certain services on your behalf. The terms of that agreement should be beneficial to you, or you shouldn’t enter into it.

Your idea is very much like what I have been saying since the first kindle came out. In the future it will be writers writing ebooks, and if success hits, the publishers will come to us. After all, this is the way it is for music and painters, isn’t it? Publishers and gallery owners look for talent. Painters don’t sned copies of thier work for review, bands usually don’t send demo’s anymore. Someone spots a painter, someone hears a band and the word spreads. In the future someone will read one of my future books and spread the word, lol, just like what happened with Wool.

I just recently discovered Earth Abides and Lucifer’s Hammer. Where have these books been hiding? What else is out there just waiting for me to discover it?

Worse yet, how many hundreds of perfect books have been denied by the big 5 because they didn’t like it, or the time of year was bad for new authors? With ebooks, anyone can write, and we will never miss a book again. It might be hard to find in a market of a million ebooks, but at least they will be there for us to discover.

Every time I see posts about awful trad pub contracts, I think of the Richard Marx song, Don’t Mean Nothing

“…A little bit of something can look awfully good to you.”

The song is ostensibly about Hollywood and the entertainment industry, but, guess what, books are entertainment too. All the same sentiments apply.

Before contracts will change, the veil of ignorance must be lifted from the eyes of writers. EVERY writer. Even those who’ve only thought about writing, or who’ve just begun, or who’ve just finished their first complete work and gaze, starry-eyed at the huge commercial successes of our time — they all must be educated so they won’t fall into the trap.

This is what Hugh, Joe, Barry, David, PG, and many others are attempting to do. It’s a process that is going to take time.

Several people above questioned the dollar amounts Hugh suggested in his post. I admit, at first, I did too. Then I wondered why. Is it because we’ve been conditioned to think that a $5,000 advance is appropriate for a debut author? And why have those advances dwindled to next to nothing in the past 10-20 years? Logically, taking inflation into account, advances should rise over time. The main reason for this, I believe, is simple: Publishers don’t know any more than you or I do about what makes a best seller. It’s a crap shoot. A lottery. They are spreading small amounts of chips all over the table in hopes of one hitting it big.

And so, by settling for puny advances and contracts with terrible terms, we encourage them to keep playing a game that we, ourselves, can play just as well and keep all of our rights.

We have to teach authors not to settle for “a little bit of something.”

I’ve been complaining about life-of-copyright and low thresholds for “in print” determination ever since I got my first contract with such provisions – so preaching to the choir here. I once thought as you do, that if enough authors stuck to their guns and said no…it will change. I’m not so sure any more. The reality is there are far too many eager authors waiting in the wings to sign contracts even with such reprehensible clauses that even if there are several people who “walk away” (and so far most haven’t) there will still be much more supply then demand.

It would be interesting, though…if the “big authors” started to walk away and then it would only be the “second tier” who would be willing to put up with such practices. It would turn the tables such that “self” would be the paragon of quality and “traditional” was for those who were so desperate that they signed. I don’t think such will happen, but it’s interesting to speculate.

FWIW…my reversion clauses are based on money (not copies sold) but it is depressingly low. I’ve asked my agent to get the level raised and she says all authors she is working with are tying and failing…well one got it moved from $500 for 2 periods to $750 for 2 periods and apparently anything beyond that and the publisher “said” they would walk on an eight-figure advance. I don’t think most people would consider $9.61 a week would constitute a situation where the publisher is providing any value to the author. What am I going to buy with that?

I get frustrated with organizations like the Author’s Guild and the AAR who seem to do nothing about these points (and the 25% of net royalty rate on ebooks). They are supposed to represent the author’s interests but they seem more interested in perpetuating an out-of-date system.

The problem is the really big authors do get fair contracts. King licenses his books for a finite number of years. Who knows what else goes on up there in the rarefied airs.

Clear thinking as usual, Hugh.

KIng has it right, of course. He’s a pro athlete. He’s LeBron. A set number of years for a certain amount of money. That’s not a precise analogy–for Traditional Publishing Empire writers it’s advance and royalty rates, as far as the money goes–but the idea that writers should license the rights to their books for a restricted amount of time after which all rights revert seems like common sense to me.

As for length of copyright…it’s the writer’s book for the rest of time unless the writer says otherwise. Life+70 sounds like a prison sentence. Did the book become any less written by that writer in year Life+71?

I know I’m late to this particular thread, but the comments are great, as always, and I couldn’t resist.

Great points, Hugh. I agree on all of them, but your post did bring up a question and I’d love to hear your opinion.

What are your thoughts on the length of copyright?

In many Western countries copyright on books is life+70 years, in Canada it’s life+50, but do you think that’s reasonable amount of time? Personally, I feel it should be shorter, maybe life or life+5, or maybe just certain number of years from the original publication date. I don’t even really have a reason, it just doesn’t feel right, as though it could be stifling culture or the distribution of books or something (though ebooks probably fix that problem). For some reason I just don’t feel a cultural product should be outside the public domain for such a long period of time.

I’m probably not making any sense, but I’d love to hear your thoughts nonetheless.

I don’t understand why it’s tied to life. It should be a set number of years, or it should be indefinite. I’d be fine if they made it 100 or 120 years. But indefinite makes sense too. If you write something, why should it ever not be yours or your descendents’?

I expect that there will always be a way to keep anything since 1923 covered by copyright in the U.S. The mouse is just that powerful.

A legitimate question, to which I don’t have an answer, but another question: why shouldn’t it pass to the commons after the author’s death?

The debate around copyright makes me think of the debate around the inheritance/estate tax. Should an individual’s descendants get all of their possessions/wealth/etc on their death, or should they be expected to make their own way in life and only receive a portion, the rest going to the public?

It’s an interesting debate, and I appreciate the answer. I think my biggest aversion to long-term copyright is that as digitization accelerates, so does the rate of innovation and change, and I wonder if having lengthly terms of copyright will stifle us in some way, like the patent system can do. There’s no way to build on old ideas because someone’s claimed ownership to them, but those protected ideas were themselves built off those that came before them. Nothing is completely original, and if we can’t build off the old going forward, would that not slow us down unnecessarily? Of course, it’s not as big of an issue in culture than in tech and other sectors of the economy.

It might be time for authors to abandon the idea that someone else will provide them what they want. I acknowledge authors want things. But it also looks like nobody has incentive to provide what the authors want. Nobody is interested in providing the perfected legacy model for authors.

That industry people want to change? It is already changing. Self-publishers are part of that industry. Look at the latest AE report.

The old publishing model that people don’t like encompasses far more than the publishers in New York. It includes physical bookstores, paper books, and the entire physical distribution system. It is going away.

Authors can’t get the legacy model changed to cater to them. Nobody has a reason to perfect it for them. It’s gone. Let it go. See the light? Go toward it.

Hugh, great point about “the new permanence of the written word.” Indeed. I like the way you phrased that, and it’s a lot of food for thought. And, I say a big yes to fixed term copyright agreements! Price minimums might be a good idea, too – works for screenwriters, why not for other types of writers?

Lifetime, or eternal rights. That brings up an interesting point. If Conan Doyle had published in the age of eternal ebook rights, no one could write a book about Sherlock without his decendants permission today. And how many Doyle decendants would be making a living on his hard work? Hmmm. Beleive it or not I believe in a cap too. I own the rights for as long as I live, then my heirs get the rights for about 20 years, after that they need to get a job or write their own books, lol.

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