Q. I wrote my (ex) publisher asking for reversion of my rights for my out of print books. The time period specified in the contract has passed and I still haven’t heard back. I sent an email referencing the letter and my request and got no response to that, either. In that email I said that the lack of a response made me assume the rights were now mine. Is this sufficient?
A. If you intend to republish with another traditional publisher, rather than self-publish, the answer is no – your new publisher will require a written reversion letter. If, however, you intend to self-publish (on Kindle, for example), you may certify you own copyright, no proof required. It is highly unlikely that your old publisher would object (or even notice), but if it did, your defense would be the publisher’s breach of the agreement in failing to revert after you fulfilled all requirements for that reversion. But let’s examine the reasons for this answer, and a possible solution.
In a typical trade publishing agreement, the author assigns exclusive print and certain subsidiary rights (negotiable) to the publisher for the term of the agreement. The author still owns the copyright, but the author cannot exercise the assigned rights unless those rights are “reverted” to the author under the conditions set forth in the agreement’s out of print or reversion clause. (Although the publisher could record its assignment of rights with the Copyright Office, this is rarely — if ever — done.)
If you have an agent, reversions should be handled by him or her. If you don’t have an agent, you must comply with all requirements of the applicable clause, using certified mail or other proof of delivery, ensuring that all time limits have expired. Wait a reasonable period of time, then begin pestering your editor or other contact person at the publisher. Keep in mind that reversions are low on the priority list of most editors, so write, call, e-mail, text, send carrier pigeons, but keep at it until you become an annoyance. If your editor doesn’t respond, go up the ladder to the editor’s boss and/or to the publisher’s executives.
If you still get no response, you may have to hire an attorney — you have the right to sue the publisher, but obviously that is a last resort, and often just a letter from an attorney will break loose your reversion letter. But what if you can’t afford an attorney, or the publisher is out of business? Then, go to Plan B: Put the applicable page of your publishing agreement (the out of print clause or reversion clause), together with your correspondence to the publisher and proofs of receipt, into one document. Then record this document as a “transfer” with the
Copyright Office — go to http://www.copyright.gov/document.html; see Circular 12
for instructions. Use a cover sheet as indicated. There will be a fee of $105.
This will establish your claim that the applicable rights have been reverted to you, subject to dispute from the publisher (again, unlikely in this situation). Offer a copy of this recorded document to your new publisher; it will be up to that publisher, its legal counsel, and the publisher’s tolerance for risk whether this document will be deemed sufficient, but often will be accepted where the old publisher is out of business.
© 2011 Daniel Steven