New Authors Guild alert for members on Simon & Schuster power grab

I just got this email from The Authors Guild regarding the Simon & Schuster rights imbroglio:

Simon & Schuster is irked that we went public with our information about their unannounced new contract language. They’ve sent a release (you can read it below) accusing us of “perpetrat[ing] serious misinformation.”

That’s a heavy charge, so we went back and double-checked. We stand by every word of our statement.

Simon & Schuster’s release pretends that the argument concerns “print on demand.” That isn’t the issue. We like print on demand: we encourage publishers to sell books in every permissible way. You wouldn’t know it from reading its release, but Simon & Schuster already has the rights – as they have for years in their standard contract – to take advantage of print on demand and e-book technologies.

The issue is what happens when a book goes out of print, when the publisher is no longer selling it in meaningful numbers. Traditionally, rights then revert at the request of the author, who often is able to give the book a new life elsewhere. Simon & Schuster is trying to change the rules of the industry so that they never have to admit that a book is out of print.

We meant what we said in our press release and our alert to members…

…Simon & Schuster’s new contract would indeed allow it to retain exclusive rights to a book even if it were no longer in print. Simon & Schuster’s contract says, “The Work shall not be deemed out of print as long as it is available in any U.S. trade edition, including electronic editions.” Having a book available for sale in some database – without the obligation to sell a single copy – is not keeping a book “in print” as common sense and the industry have defined that term.

Simon & Schuster would, under its new contract, be empowered to exclusively control your rights even if your books aren’t available for sale through traditional bookstores. E-book availability (read any good e-books lately?) would be enough to fulfill Simon & Schuster’s contractual commitments under its interpretation of “in print.” Roy Blount is plainly right, this contract would allow Simon & Schuster to squirrel away rights…

Simon & Schuster’s efforts to alter the true core deal of a trade book contract – that a publisher controls the right to sell an author’s book only so long as the publisher effectively exploits that right – demanded exposure. Agents reported to us that Simon & Schuster had slipped the change into its contracts without alerting agents to the alteration, which was quite subtle and easily missed. Agents also reported that when they discovered the change and questioned the publisher about it, Simon & Schuster played hardball, saying the clause was non-negotiable and wouldn’t be discussed. In its release, Simon & Schuster seems miffed that we didn’t discuss their new contractual language with them before exposing it to sunlight. Engaging in discussions with a conglomerate playing hardball while authors may have been unwittingly signing rights away would, in our view, have been irresponsible….

In the meantime, if you have an offer from Simon & Schuster, remember that the publisher has now said it will negotiate this clause on a book-by-book basis. If you’re fortunate, Simon & Schuster will offer you a reasonable out-of-print clause. (Feel free to discuss this with us or talk to your agent about the adequacy of the clause.) If not, it’s in your interest to explore your options – other publishers have reaffirmed that they’re not following Simon & Schuster’s example. If you have a manuscript that may be auctioned, it’s in your strong interest to ask your agent to exclude Simon & Schuster imprints unless they agree before the auction to use industry standard terms.

Here’s Simon & Schuster’s release…which we forward to you at the publisher’s request:

TO OUR COLLEAGUES IN THE AUTHOR AND AGENT COMMUNITY

The Authors Guild has recently perpetrated serious misinformation regarding Simon & Schuster, our author contracts and our commitment to making our authors’ books available for sale. Unfortunately, these distortions were released by the Authors Guild without their having undertaken any effort to have a dialogue with Simon & Schuster on this topic.

In recent years, Simon & Schuster has accepted, at the request of some agencies, contract language that specifies a minimum level of activity for print on demand titles. Our experience with the current high quality and accessibility of print on demand titles indicates to us that such minimums are no longer necessary. Our position on reversions for active titles remains unchanged. As always, we are willing to have an open and forthright dialogue on this or any other topic.

When considering this issue, we ask you to please keep in mind these important points:

• Through print on demand technology, publishers now have the ability, for the first time in history, to actually fulfill the promise which is at the core of their contracts with authors – to keep the author’s book available for sale over the term of the license.

• We view this progress as a great opportunity to maximize the sales potential for slow moving titles, and some of the best news for authors and publishers in a long time. The potential benefit for all concerned in incremental income for the publishing partnership far outweighs any imaginary negatives purported by the Authors Guild.

• We and others are investing heavily in digitization so that authors and publishers can reap the maximum benefit of publication over the long term. New technologies including print on demand will extend the life of a book far beyond what has been possible in the past.

• Contrary to the Authors Guild assertion, using technologies like print on demand is not about “squirreling away” rights, nor does it mean that “no copies are available to be ordered by traditional bookstores.” Print on demand is simply a means of manufacturing a book, making it widely available to retailers and consumers….

Most importantly, we hope you know that we view authors and agents as our partners in the publishing process. We have always been open to discussion and negotiated in good faith at every point in the life of a book.

May 21, 2007

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