The statutory termination right: One copyright act provision your publisher hopes you never hear about

In the fall of 1977, Ralph Little had just received his Ph.D. in Elfin Studies and was beginning his first faculty job as an assistant professor at Middle Earth College. Elfin Studies was in its infancy – many universities did not even recognize it as a legitimate discipline — and there was no introductory textbook on the market. Each week Ralph prepared lecture outlines on ditto masters for the dozen intrepid undergraduates in his Elfin Studies 101. When a representative of Colossal Publishers, Inc., came by his office, Ralph, sporting the sideburns and bell-bottoms of the day, told him about his idea of writing an introduction to Elfin Studies.

Soon afterward, Colossal offered Ralph a contract to write his Introduction to Elves, for a royalty of 5 percent of Colossal’s receipts on every copy sold. The royalty sounded almost as diminutive as the subject matter. But Ralph was thrilled to become a textbook author, and the editor promised him that when the book came out, he would be invited to Colossal’s Midwestern sales meeting in Minneapolis. He signed the contract early in 1978, and the first edition was published on January 10, 1980.

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How to protect yourself from lower textbook royalties from foreign sales

Textbook authors need to be alert for the possible impact on them of the practice among some U.S. textbook publishers of selling books in foreign countries using an “inter-company” transfer price.

U.S.-based publishers generally sell into overseas markets through relationships with foreign publishers based in the destination country. Books sold in this way are sold to the foreign publisher at a discounted price to compensate the foreign publisher for its role in the distribution process. In such a case, the author’s royalty is calculated on the lesser amount received by the U.S. publisher from that sale.

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Information key to win-win textbook contract: Play 20 questions with your editor

When negotiating a contract with an acquisitions editor, gather as much information as you can about that person during the negotiation, said Steve Gillen, an attorney with Wood Herron & Evans.

“The more information you can gather about their interests, objectives, constraints, etc., the better armed you will be for the negotiation,” he said. “Ask the editor questions about herself to find out how close she is to reaching her new contract signings goal (and possibly earning a bonus). The higher the advance, the more attention the acquisition editor will pay to your book.”

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Create a collaboration agreement with your co-author

Collaborating with a co-author on producing a textbook can have many benefits, said Steve Gillen, an attorney with Wood Herron & Evans. “It can diffuse the burden of a large project; allow you to draw on each other’s strengths; create a broader appeal for the work; and give you access to a sounding board for ideas,” he said. “On the other hand, the most bitter troubles and disputes occur between co-authors. Of all disputes, those between collaborators are the worst–they almost never have a happy ending.”

One source of trouble is in the way the Copyright Act deals with co-authorship, said Gillen. “The default positions stated in the Copyright Act with regard to co-authorship are often not those that you would provide yourself,” he said. They include:

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Q&A: What happens to textbooks when a publisher sells lists to other publishers?

Q: “What happens to textbooks in inventory or those under contract when publishers sell lists to other publishers? How can we find out whether books have been stolen or put into the hands of resellers?”

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

“It depends upon the deal between the two publishers. Typically, the acquiring publisher buys the inventory along with the contracts. Then they sell it out or destroy it so they can produce a new printing under their imprint. It’s also possible that the acquiring publisher would have no interest in the existing inventory under the old imprint and would require, as a condition of sale, that the selling publisher destroy the inventory. Regardless of who sells the books, the author should get a royalty in accord with the terms of the publishing contract (of course, if the books are remaindered that royalty may be small or nonexistent depending upon the terms in the publishing contract). In any event, any sales should be reflected in the next royalty statement. If there is a question, ask the new and old publishers to provide an inventory reconciliation.”

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Q&A: How to penetrate the university textbook adoption process

Q: “I am a new author of a textbook on managing a construction firm. I have several adoptions by professors teaching construction courses at the college level, but I would like to penetrate the university market more. I have been making quiet contact through email to them. Is there a better way? I have attended an educators’ conference in construction and that has been a very good introduction to several people and plan to go back to their summer meeting.”

A: Myrna Bell Rochester:

“I am guessing that your book is with McGraw-Hill ‘Professional’ or ‘Trade’ (based in Chicago), and not with McGraw-Hill Higher Ed. (I write for both of them in a different field.) You are doing the right thing to make your book known, with your personal marketing and making contacts in your own area. Whereas the McGraw Higher Ed division has a very well developed marketing system, McGraw Professional doesn’t (to my knowledge) go to schools and universities to market individual titles.

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