Q&A: How to get your textbook rights back from your publisher

Q: “My publisher has decided to drop my books. How can I tell from my contract whether this means I could get another publisher to pick them up for a new edition, vs. writing a totally new work?”

A: Steve Gillen, Attorney, Wood, Herron & Evans:

“Most publishing contracts have a ‘reversion’ or ‘out-of-print”‘clause that requires the publisher to return the rights to a work to the author if and when the publisher takes the work out-of-print. Sometimes this right of reversion is triggered automatically. More frequently, however, the author must request the publisher to execute a copyright assignment. The more problematic issue is likely to be at what point does the right mature — i.e., when is the work “out-of-print.” Look to the language in your contract for the answer to that question.”

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Q&A: Timeline for textbook royalties: When should you get paid?

Q: “I am concerned about the length of time a publisher can hold onto royalties. Mine are due in April, four months after the close of the accounting period in December. This means some monies have been held from July 1 through April — 10 months! I would think interest should be paid or royalties sent out on a more continuous basis.”

A: Steve Gillen, Attorney, Wood Herron & Evans:

“The publisher’s obligation to account for and pay royalties is set forth in the publishing agreement. While the timing of payment and the nature of information contained in the reports may be negotiable, the time to negotiate these issues is before the agreement is signed. Once the deal is done, it’s too late for the author to complain. Historically, publishers have paid royalties on an annual or semi-annual basis (providing reports and payments anywhere from 30 days to four months after the close of the relevant accounting period). I suppose there was a time when this delay was justified by the difficulty in processing returns and credits and closing the books. Now, however, it persists as custom rather than of necessity.

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Q&A: Hardcover vs. Paperback-Which option is better?

Q: “My publisher has asked if the 5th edition of my book should be published in hard or softcover? The first four editions were all hardcover. Do you know of any reasons to favor one over the other?”

A: Don Collins, the author or co-author of seven school mathematics textbooks, and former Managing Editor of Mathematics at Merrill Publishing:

“The answer to this lies in the royalty agreement. If the agreement is so much for each text sold, then by all means go the paperback route. However, most publishers base their royalty agreements on dollar volume. In this case certainly since paperbacks are cheaper and do not last as long, then more of them will be sold. So one has to consider which is greater: Cheaper price X more volume or Higher price X less volume. The author sort of has to roll the dice. In most case there isn’t a great deal of difference. I don’t think you can go too far wrong either way, but if it were me I would go the paperback route.”

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Q&A: Can you switch textbook publishers once you are under contract?

Q: “What can you do if you feel that your publisher is not doing a good job handling your book? Is it possible to switch publishers? What legal issues are involved?”

A: Stephen E. Gillen, Attorney, Wood Herron & Evans:

“The publisher’s obligations to market your book are set out in your publishing contract. Generally speaking, most standard publishing contracts reserve very broad discretion to the publisher when it comes to these obligations. And editors and publishers take a good deal of faith and comfort in these carefully crafted provisions.. But the truth is that many courts have declined to read these provisions literally, relying in a number of cases on an implied obligation to deal in good faith as a means of reining in a publisher which may have abused its discretionary powers.

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