Reversion Redux

In the aftermath of the recent Anthropic Settlement (more information here), many writers are making a reassessment of the necessity and value of copyright registration. Claiming a share of pay-out from the settlement is 100% dependent on having a work registered with the U. S. Copyright Office in a timely fashion. It’s relatively easy to register a work with the Copyright Office and doing so can guarantee the right to receive statutory damages in infringement lawsuits and settlements.

These writers may be overlooking another significant factor in making a class action claim – whether the work’s rights have been reverted to the author.

Under the definitions on the Anthropic Settlement website, there are two types of rightsholders who may make a claim – those who have received publishing rights by contract (generally, the publishers) and those who have licensed those rights (generally, the authors). While this breakdown is very common for traditionally published books, there are many exceptions. Self-publishers, for example, own their rights 100% because they’re both the publisher and author. (For these works, Amazon is a distributor and owns no publishing rights.) Another important exception is for works that originally had a publisher but have gone out of print and have had their rights returned to the authors (rights reversion).

The difference between how the Anthropic settlement treats these latter two types of rightsholders is striking. They will receive 100% of the settlement payout. By contrast, if there’s a publisher involved that still has their rights, the default is that the publisher will receive 50% of the amount and the writer receives the remaining 50%. It does depend on the language in the publishing contract, but many traditional publisher contracts specify that any payout from a copyright infringement lawsuit will be split equally between publisher and author.

While the exact amount of the total payout from Anthropic is dependent on what the lawyers take (20% as of their filing on December 3) and other factors, a reasonable estimate is in the vicinity of $2,000 per work. Fifty percent of that is significant.

As this is being written, a number of other writer class action suits against AI companies are in progress and it’s a good bet that similar settlements with similar definitions are in the offing. For those who have traditionally-published books that ceased to sell but who never reverted their rights for whatever reason, reversion is worth reconsidering.

In many cases we believe that the failure to revert is simply writer inaction, together with the hope that the publisher will reissue their book spontaneously no matter how much time has passed. Many contractual reversion clauses make it difficult if not impossible to know for sure that a book has gone out of print and most require that the writer request that the publisher either reprint the book within a specified period or revert the rights, so it isn’t automatic. When there’s an ebook edition, it can be even harder, because it’s a simple matter for the publisher to never declare them out of print. Writer Beware has many blog posts about rights reversion that talk about the steps and difficulties of rights reversion, but the short version is that many traditional publishing contracts do not include a meaningful definition of “out of print” and require the writer to initiate a long process in which the publisher must cooperate and send the writer a “reversion letter”, which is the final proof that the publisher has relinquished their rights and terminated the contract.

It’s almost certainly too late to start the process of reclaiming your rights for the Anthropic Settlement payout, but if you have a book that has been out of print for some time, and you have sent a contract-defined request for reversion to the publisher and received no response, you may have fulfilled your responsibility as far as the contract is concerned and still qualify for the full payout amount. If you do have such books in the Settlement’s List of Works, we recommend contacting the Anthropic Settlement Administrator to get specific recommendations about filing your claim.

For future class action lawsuits and settlements, it may not be too late to at least start the process. A reversion letter is worth its weight in gold and will come in handy if you ever want to self-publish and guarantees that you won’t have to share future windfalls with your erstwhile publisher.