Writer Beware often hears from authors who’ve signed up with bad or inexperienced or dishonest publishers, and are desperate to get free. They write to us wanting to know how they can break their contracts and regain their rights. Unfortunately, there’s usually no easy answer to this question, even where the publisher has clearly breached its contractual obligations. Too often, I have to tell people that they are probably stuck.
That said, here are some general suggestions, which may or may not be applicable to your situation, and may or may not work for you (obligatory disclaimer: I’m not a lawyer, so what follows should not be construed as legal advice).
1. First and most obvious, check your contract for a termination clause. If there is one, invoke it per the instructions. Beware, though, of termination fees, which some publishers use as a way to make a quick buck off the back end.
2. If there’s no termination clause, try approaching the publisher and simply asking to be released. A publisher may refuse or ignore such a request–but sometimes it will recognize that an unhappy author isn’t an asset, and may be willing to let him or her go.
If you take this approach, don’t dwell on the problems you’ve had with the publisher. Try to keep your explanations as neutral as possible–such as saying that you don’t feel you have the time or resources to help promote your book, or pointing to falling sales. If you feel you must mention problems, do so in a factual, businesslike manner, without recriminations or accusations. Especially, don’t mention any negative information you may have found online or heard from other authors. As large a part as this may play in your desire to be free, your request is about you and your book, not other authors and their books. Bringing others’ complaints into the picture is likely to alienate or anger the publisher, in which case it may be much less disposed to pay attention to your request. (In some cases, it may become twice as determined to hold on to you.)
Once again, watch out for demands for money. I’ve heard from some writers whose publishers attempted to blackmail them into paying a fee when they requested release, and from others whose publishers required a sizeable termination fee even though no fee was mentioned in the contract.
3. What about if your publisher is in clear breach–failing to pay royalties or to report sales in a timely manner, for instance? You can try informing the publisher that you are terminating the contract for cause. Be aware, though, that this may backfire.
First, even if you’re correct and the publisher has provably breached its obligations–and even if the contract includes a provision for termination due to the publisher’s breach, which not all contracts do–you, personally, have no way to enforce a termination. The publisher can simply deny your allegations, or stick its metaphorical fingers in its metaphorical ears and go right on producing and selling your book. There are many cases like this in Writer Beware’s files.
Second, you may consider the contract to be null and void after you send the termination notice, and your current publisher may not have the resources to sue you if it disagrees–but if it does disagree, and you want to re-publish, you’ll have problems. Another publisher won’t be interested in a book whose rights aren’t unambiguously free and clear. Even self-publishing services and platforms require you to warrant that you have the right to publish. You must be able to show some kind of formal rights reversion document–which you won’t be able to do unless your publisher actually consents to let you go.
4. If you’re a member of a writers’ group, they may be able to help. For instance, the Authors Guild offers legal advice to members. SFWA has Griefcom, which will directly intercede in an attempt to resolve the situation for you. Similar services are provided by the National Writers Union’s Grievance Assistance program. Novelists Inc. has a legal fund, which entitles members to up to two billable hours of legal consultation per year.
5. If there’s no termination clause and the publisher refuses to consider a release request, you can resign yourself to waiting things out, either to the end of the contract term, if the contract is time-limited, or until the publisher decides to remove your book from sale.
Obviously this is more feasible for contracts with relatively brief terms of one to three years, and less so for longer terms, or for life-of-copyright contracts–especially since so much publishing is digital, and with digital publishing there’s little incentive for publishers to ever take works “out of print”. Depending on your situation and your finances, however, it may still be preferable to the final option….
6. Consult legal counsel about your situation, and your options for taking legal action. This is where the issue of breach becomes relevant. A publisher may ignore an author’s personal claims of breach, but may pay more attention if an attorney is involved.
If you choose this option, not just any lawyer will do. You want someone who practices publishing law. Publishing is a complicated business, with practices and conventions that are not well-understood by people in other fields; and publishing contracts are unique documents with terms and conditions that aren’t found elsewhere. In order to provide effective representation, your lawyer needs the appropriate skill- and knowledge-set.
(This same caution, by the way, applies to hiring a lawyer to vet a publishing contract prior to signing it. I hear from any number of writers whose non-publishing-specialist lawyers gave the green light to a contract that would never have passed muster with a publishing law specialist, or a competent literary agent.)
There are a number of options for low-cost legal services, some of them specifically for people in the creative arts. For instance, many US states have Volunteer Lawyers for the Arts organizations, which provide services geared to helping people who work in the arts. The Arts Law Centre of Australia provides free- or low-cost legal advice and referrals for Australian creators and arts organizations. Artists’ Legal Advice Service helps creators who are residents of Ontario, Canada. Artists’ Legal Outreach does the same for residents of British Columbia, and similar assistance is provided in Montreal by the Montreal Artists’ Legal Clinic. There are also general referral services, such as the American Bar Association Lawyer Referral Network.
You can find more information and links on the Legal Recourse page of Writer Beware.
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How to Request Rights Reversion From Your Publisher
I have a question about a tentative contract with a small academic publisher pending peer review. I have submitted my manuscript for review but they are having a hard time finding reviews for my specific topic and was contacted by a well-known and larger academic company today who is interested in my manuscript as well. Again, this is academic publishing. I wanted to know if I am able to rescind on a tentative contract (which does not have a termination clause). Any advice would be appreciated.
Obligatory disclaimer: I’m not a lawyer, so I can’t offer legal advice. Have you actually signed this contract? If not, you should be free to withdraw your manuscript (do consider, though, whether there might be professional repercussions, depending on the circumstances). If you do withdraw, I would recommend doing so before going forward with the larger publisher, rather than trying to hedge your bets.
Great thank you but yes I did sign a contract and think I will inquire about the logistics prior to any action. I appreciate your candor though. It is a tricky business navigating the publishing world. Thanks again!
Wordlover,
Was the company PublishAmerica, aka America Star Books? If not, I'd be interested to know who it is.
At any rate, just doing some re-writing and changing the title doesn't create a new work, and if you didn't come clean about its already-published status, a new publisher might be very annoyed to discover this after you'd signed a contract (remember, the internet is forever). Self-publishing might be a better option for you.