Writers-for-Hire

If one were to compose a Bill of Rights for authors, ownership of copyright to their works would certainly be close to the top of the list. We hold self-evident the truth that if a person produces an original book-length work, he or she is entitled to proprietorship under the law, and to full benefit of its commercial exploitation.

Yet, it has not always been so. The piracy of literature by printers, publishers, and booksellers has been common practice throughout the world from the dawn of the printed word, and was prevalent in this country until well into the present century. Until the establishment of the first International Copyright Convention in 1891 and its refinement after World War II, respect for the sanctity of copyright was largely a matter of gentleman's agreements based strictly on self-interest—don't steal from me and I won't steal from you. There are still vast areas of our globe where publishers think nothing of stealing and distributing works of literature from authors and publishers of law-abiding countries, and the emergence of electronic and online media have made it a big business. Piracy of books, videotapes, music, and other intellectual property in some foreign countries is tolerated, condoned or even sponsored and supported by their governments.

Lest you become too smug that such barbarities cannot happen here, I am compelled to report my observation that the appropriation of authors' copyrights by publishers and book packagers seems to be on the upswing. Nothing so gross as piracy, mind you. More, I would say, like extortion. But the effect is the same: the deprivation of authors' rights to enjoy the fruits of their labors. The fruits of an author's labors include such bounties as royalties on copies of books sold, participation in reprint income, and revenue deriving from the exploitation of serial, translation, dramatization, electronic, and other subsidiary rights. Not everyone shares the conviction that the enjoyment of these monies is a natural and God-given right, however. Indeed, not everybody behaves as if the enjoyment of these monies is protected by statutory law.

The engagement of writers for flat fees falls into a category of employment known as "work-for-hire." Work-for-hire is a doctrine defining the relationship between a copyright owner and a writer. Note that the owner may or may not be an author; he, she, they, or it may be a corporation (like a movie studio or television production company), a syndicate of investors, or an individual who is not a writer. These entities hire writers to perform a service in pretty much the same way a homeowner hires a cabinetmaker, a painter, or a gardener, except that in this case the task is writing a text for the "boss"—the creator or owner of the idea. The owner is then free to exploit the text in any way he desires with no further obligation to the author.

Some provisions of the 1976 Copyright Act attempt to define the work-for-hire concept, but they do not do so very clearly and have left the door open to unfair exploitation of authors.

I hasten to make clear that all work-for-hire is by no means exploitive. Authors sometimes voluntarily sell all rights to their copyrighted work. And there are numerous situations in which work-for-hire may be considered reasonable and acceptable by normal ethical standards; for instance, the engagement of writers to do articles for an encyclopedia. The copyright holder of the total work is the publisher, and because it would be impractical and uneconomical to pay a royalty to each contributor, the normal arrangement is a one-time fee. As long as the fee pays for the time and effort, the author is usually content, particularly if he or she gets byline credit, for a contribution to an encyclopedia bears great prestige that helps the author endure the low wages.

Another application of the work-for-hire concept that most of us accept unquestioningly is ghostwriting. Authorities or celebrities who cannot write well or are too busy to write their own books engage writers to draft books for them. Although the principal author may agree to share some of the proceeds of the book with his ghost, the principal is the sole signatory of the contract with the publisher, thus making him the copyright owner. He then signs a separate agreement with the ghost, removing that person from claim to copyright and direct participation in revenue generated by publication of the book. Occasionally, what may have seemed a fair fee at the time it was negotiated with the ghostwriter may not seem so if the work demanded of him turns out to be excessive, or if the book becomes a runaway best-seller. Under ordinary circumstances, however, the ghostwriter accepts his lot as a worker-for-hire, and may at least secure more work for himself by telling publishers, "That book was actually written by me."

If all this seems a bit remote to you, let me point out that many garden variety authors employ other writers on a work-for-hire basis. Take the creator of a popular fictional series who, growing bored with his characters or too busy with other projects to turn out new books in his series, farms them out to other authors. He signs contracts with his publisher, then negotiates separate agreements with ghostwriters to produce first drafts or even final ones for him, which he passes off as his own. In some instances the publisher is aware of the existence of these subcontractors, in others it is not. But seldom is the subcontractor a signatory to the publication contract, and though he may receive a piece of the action as part of his deal with the principal author, it is not strictly a royalty in the sense we usually understand it, and of course the ghost forfeits any claim to copyright ownership.

Although I'm not at liberty to detail the many instances I know of authors who farm their work out, fans of those authors might be shocked to learn that their favorite books are produced, as it were, in a shop. There is in particular one best-selling male action-adventure series whose creator, to my knowledge, no longer writes his own books at all. In conjunction with his publisher, he puts the production of his books on an assembly line basis. A series "bible" describing the characters and general story line of the series is issued to writers, who submit plots for the approval of the creator and/or the publisher. Upon approval, a contract is issued to the writers. At first glance it looks like a typical publishing contract, but closer scrutiny reveals that the copyright is owned by a corporate entity; the advance is not called an advance (it's simply called a "sum"); and the royalty is not called a royalty (it's called a "bonus payment") and is expressed in cents rather than as a percentage of the list price of the book, presumably to further remove the writer-for-hire's labor from any association with creation of the work. I estimate the payments to the writer-for-hire to be approximately one-fourth to one-third of the traditional royalty that might normally accrue to him if he were the original creator of the book. I assume that the balance of the royalty is shared between the originator and the publisher.

In the above example, the originator of the series is in effect a packager. Packagers, as I have stated elsewhere, are sui generis. They are not exactly authors even though they frequently create the ideas and story lines for books; they are not exactly agents even though they take a kind of commission for their roles as go-betweens among authors and publishers; and they are not exactly publishers even though they buy the services of authors.

I've never been comfortable with packagers either in theory or in practice. Packagers are both buyers and sellers at the same time (so that "broker" might be the most apposite synonym), and there is inherent in their function the potential for mischief, abuse, and downright dishonesty. Some book packagers are as honest, open in their business dealings, and caring about authors as is possible under the circumstances. But a number are little short of rapacious, hiring authors for the smallest fees they can get away with and paying them no royalty or participation in subsidiary rights revenue whatsoever, while selling their books to publishers for very large multiples of what they pay the writers for them.

Furthermore, while these packagers manage to sell publishers on the concepts of books or series, they often contribute little or nothing by way of editorial input or guidance. An author is given the most general ideas ("How about a Dirty Dozen set in Bosnia!"), then is required to create characters, situations, and plots—create, in short, the entire series. The packager's argument is that were it not for his initiative in creating an idea and selling it to a publisher, writers would have no work and no pay. As the level of pay is all too frequently subsistence, the cause for heartfelt gratitude frequently escapes the writer-for-hire.

Because many publishers don't particularly care where their product comes from as long as it is good, is delivered on time, and is not too expensive, they provide fertile ground in which packagers can flourish. That is one key reason for my concern that the packaging phenomenon, with all the implications of author exploitation that it represents, is on the rise. The other reason is that some publishers are taking their cues from packagers and doing the same thing. They cook up series ideas in their offices, produce a series bible, then hire writers to write books in the series under a house pseudonym. Because such publishers maintain that they created the series, they have been scaling back advances, royalties, and author participation in subsidiary rights for those books, and their contracts are, in fact if not in actual language, work-for-hire agreements. In many instances, the publishers offer flat fees to authors interested in writing books for publisher-originated series, take it or leave it.

Of more recent vintage, but a phenomenon that will grow to major proportions as time goes by, is the use of writers-for-hire for electronic and multimedia works, where text is but one element along with still and moving pictures, music, animation, etc. And the exploitation without compensation of electronic versions of stories and articles for magazines has become a source of bitter warfare between writers groups and newspaper and magazine publishers.

You might infer that I refuse to do business with the more exploitative of packagers and publishers, but that is not the case. Some of my clients are hungry, and occasionally some are desperate for any kind of work, and though I may judge certain packagers and publisher-packagers harshly, practically speaking I don't feel it is fair for me to turn down, out of hand, work for clients who might be grateful for a few thousand dollars and a job that gets them through a financial squeeze or crisis. It's easy for an agent to tell an author, "I'd rather see you starve than accept that deal"; it's not so easy for an author to agree with him. If, after a writer has weighed all aspects of a work-for-hire deal, he or she still wants the job, then the only thing an agent can do is negotiate what few safeguards he can, such as making sure the writer is not legally liable for changes or additions to his text rendered by the packager or publisher. The quality of help an agent can render in these cases is the equivalent of telling the tenant of an avaricious landlord, "You have two choices: sign the lease or don't sign the lease."

Because packagers prosper from a supply-and-demand dynamic that is clearly—at this time, anyway—in their favor, there is little that individual authors or agents can do to roll conditions back. It must be done through collective action. Sad to say, authors and literary agents are scarcely closer to effective collective activism than they were when I started advocating it years ago. So if you've been holding your breath, let it out.

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.

Is Fast Writing Good Writing?

I have a standing bet with many publishers, backed by one thousand dollars payable to the charity of their choice. The bet is that a professional author can write a book faster than a publisher can write a check.

So far nobody has taken me up on this wager, and I doubt if anybody will. But if someone wants to, just make your check payable to Doctors without Borders.

There is no gimmick here. At least a dozen professional writers on my client list are capable of turning out a novel in two to four weeks, even less if their publisher is desperate. But I know of scarcely any major publisher capable of routinely preparing contracts or, once contracts have been signed, cutting a check in that period of time. Unless it's an emergency, in which case it takes about three weeks longer.

I don't believe my clients are unique in this respect. Many agents handle or know of authors capable of turning out genre fiction, male adventure, westerns, romances, and the like, within weeks. In fact, many writers would go under if they were not capable of producing at least a book a month.

But are the books good? What is the relationship between the quality of a book and the time it takes to produce it? I'll be exploring these questions in a moment. But I'm not quite through with publishers.

The contracts and accounting departments of most publishing companies are extremely burdened with work and, under the best of circumstances, move with maddening bureaucratic casualness. Absent, it seems (to authors and agents), is the sense that the papers being shuffled have any bearing on the basic needs, the food and clothing and rent and car payments and college tuitions, of the human beings "hereinafter referred to as Authors." One agent, in a frothing fit of frustration, likened the process to the admitting office of a hospital emergency room, where the life fluids of victims trickle out of their bodies while the admitting clerk takes down their address, Social Security number, and mother's maiden name. I don't know if I would go that far, though I do remember a case of one crazed client who informed his editor he had just had his cat destroyed because an unconscionably late contract and check had made it impossible for him to pay for the poor creature's medical treatments. But I might, if I were of a cynical turn of mind, be tempted to suggest that the torpid pace of the contracts and accounting departments of some publishing companies is yet another example of how publishers cling to money as long as possible at the expense of authors. Luckily, I am not of a cynical turn of mind.

In fact, one's heart might almost go out to the gallant minions of the contracts and accounting departments. Anyone who has actually seen them in action, or inaction, must appreciate that the choreography of procedures for drafting a contract and drawing a check is highly complex in even the most efficiently run publishing houses. Once an editor has concluded negotiations with an agent or author, he or she draws up a contract request enumerating all of the deal points plus any variations in the boilerplate language that the author or agent may have requested. This contract request joins the many others awaiting action by the contracts department. The terms in the contract request are then transferred onto contract forms.

These forms must now be reviewed, sometimes by the original editor, sometimes by department heads, sometimes by the chief executive of the company, sometimes by all of them. The contracts are then submitted to author or agent, and if, heaven forbid, there should be but one or two minor items to be negotiated or renegotiated that the editor or contracts person does not have sole authority to decide, approval of those changes must be secured from someone at the company who is in authority. I have seen a contract held up for a month because I requested upping the number of free authors' copies from ten to twenty, or extending the delivery date by one month. Some contract department heads are fanatical about initialing alterations, requiring weeks of additional back-and-forthing. Some agents have become quite masterful at forging their clients' initials on contracts, and though this is a potentially dangerous practice, it seems like the only practical tactic to counter massive delay. One of my colleagues grinningly boasts, "If I spent a day in jail for every set of initials I've forged, you'd never see me again."

Once the contracts have been signed by the author, the machinery for procuring the check begins to grind. The contracts department issues a voucher instructing the accounting department to draw the check due on signing the contracts. Such vouchers must in the normal course of things be reviewed by the comptroller or some other executive in charge of financial affairs. Once the check is drawn, it will be examined by that executive and possibly by the publisher before it is signed by one or both of these officers. Needless to say, it is not as if these folks have nothing else to do.

If, therefore, you wonder why a publishing company can't just type up a contract the way you might scribble a thank-you note, and dash off a check the way you dash one off to pay your landlord, now you know, and perhaps you'll feel a bit more compassion for the clerical staffs of publishers.

I do. But my bet still stands.

Despite this lengthy digression and a muffled tone of querulousness, this chapter is not about how slow publishers are. It's about how fast writers are.

Outsiders—by which I mean people with little firsthand experience of the creative and technical aspects of writing—have difficulty making peace with the idea that any kind of book, let alone a good one, can be turned out in thirty days or less. But I know of several professional writers who have written full-length novels over a weekend, not because they wanted to, but because they had to in order to accommodate publishers in a jam. A tightly scheduled manuscript had not been delivered on time, covers were printed, rack space reserved, the printer's time booked. "Can do," these heroes quietly said, and on Monday morning, looking like The Thing From The Crypt, they dragged into their publisher's offices with a manuscript.

Ah, you murmur, but were they good manuscripts?

This annoying question arises again and again whenever prolific writers are mentioned. It's easy to understand how the public at large would classify such feats as belonging to that end of the spectrum of human accomplishment reserved for flagpole sitting and marathon dancing. It's harder to understand why many editors feel that way too. But a large number have the attitude that the quality of literature rises in direct proportion to the time required to produce it. Publishers, even those who publish lines of genre fiction that call for short and rigid deadlines, are quite suspicious of prolific authors. They can't believe a book written that fast can be that good.

I have always felt that in order to qualify to practice their profession, editors should be required to write a novel. They would then undoubtedly discover that many of the skills they now consider dismayingly hard are actually quite easy, while many they regard as a cinch are inordinately difficult. One thing they would appreciate, I'm certain, is that an experienced professional writer working an eight-hour day and typing at average speed can produce five thousand words daily in clean first draft without pushing. That's a finished book in twelve to fifteen working days.

But one draft? How can a writer produce a first draft that is also a polished draft?

One reason is that he has no choice. The author who writes a good book in one draft will earn twice as much money as one who writes the same book in two. And when the pay scale is twenty-five hundred to five thousand dollars per book, one simply cannot afford to write a second draft.

It is also a matter of training. Many professional writers reach a level of craftsmanship where whacking out clean copy is as natural as hitting balls is for a professional baseball player or dancing en pointe is for a ballerina. The amateur who writes fast usually writes sloppily; the professional who writes fast will most likely write masterfully.

And let us not forget inspiration. It is not uncommon for writers to talk about writing as if in a trance, or feeling like a channel through which a story is being poured from some mystical source. Some writers rehearse a scene or story so often in their heads that when they finally commit it to paper, it all comes in a rush, as if they're writing from memory rather than from a sense of original creation.

All this is helped by the development of computerized word processors, which enable their owners to write two drafts in the time it used to take writers working on conventional typewriters to write one. But now that the technology is at hand, will the prejudice against prolificness finally be overcome? I'm not too sure.

For, in the last analysis, it isn't the editors or public who cling most tightly to the myth that fast writing is poor writing. It's the writers themselves. Almost all the professional writers I know equate speedy writing with money and slow writing with love, to the point where their personalities actually bifurcate and the halves declare war on one another. Authors capable of knocking off a superb genre novel in one draft will agonize over every sentence of their "serious," "important," "literary" novel as if they were freshmen in a creative writing course. They seem to believe that anyone wishing to cross the line between popular entertainment and serious literature must cut his output and raise frustrating obstacles in his own path, and that legitimacy may be purchased only through writer's block. It is futile to point out that Dickens, Balzac, Dostoyevski, and Henry James wrote as if possessed, in many cases with scarcely a single emendation, yet turned out a body of sublime classics. And they did it in longhand, by the way.

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.

- Richard Curtis

There Are Outlines, and Then There Are Outlines

Many excellent works are available about how to write, but there is one category of writing that even topflight professionals struggle with, and that's outlines. I have seldom seen outlines covered adequately in the how-to literature I've read, probably because most writers who write about writing have never seriously examined why we need outlines. If you think we need them only to help us write books, you're probably doing something wrong.

Too many writers dismiss outlines as unworthy of serious attention, or not essential to the practice of their trade. "I'm a good writer, but a lousy outliner," I frequently hear, and the statement often sounds like a boast. "What does it matter?" goes another typical remark. "My finished books don't resemble my outlines anyway, so why bother?" Still others say, "The outline is in my head, and as long as my books turn out well, why should I have to outline them on paper?"

These scoffers have failed to understand the critical truth about outline writing: publishers are less interested in what's going into your book than they are in what's going onto your cover.

From what I know about publishing history, the use of outlines to sell books to publishers is a relatively recent phenomenon. Before World War II, it was de rigueur for authors to submit completed manuscripts to their publishers. Even established authors wrote their books before seeking contracts with their regular publishers. They might consult with them in the formative stages, but it was pretty much taken for granted that the author knew what he was doing and where he was going with his book, and that editors served to help shape or tidy up the finished product. The purpose of outlines was, as you might expect, to help authors conceptualize and develop their books. It didn't matter if the outlines were long or short, well written or scribbled, highly compressed or elaborate (Henry James composed forty thousand word summaries of his later novels, declaring the process "The divine principle of the scenario"): an outline was a working sketch for the sole use of the author. It was not designed for display, particularly to publishers.

After World War II, the nature of publishing changed dramatically, affecting not only what kinds of books were written but how they got sold. Not the least of the transformations was that of the outline from writing tool to selling tool.

With the emergence of publishing as big business, with the acquisition of publishing companies by conglomerates or their absorption into immense entertainment complexes, a schism was created between the editorial and the business functions. Tremendous tensions were created as publishers demanded better justification for the purchasing of books. Profit-and-loss statements and market projections had to be drawn up before submissions were accepted. Editorial and publishing committees replaced the judgments of individual editors whose rationales for acquisition were often no more than intuition, enthusiasm, or personal pleasure.

In order to crack this increasingly formidable system, authors were required to produce detailed and polished presentations that answered not merely the question "What is it about?" but such questions as "How does it differ from similar books?" "What is the target market and how large is it?" and "Can a publisher make a profit on it?" It no longer mattered if an individual editor was wild about a book or a proposed book, because he was no longer the only person making the decision. Indeed, many of the people now making the decision might not have read the work at all, and not a few of them weren't particularly interested in books except in terms of their bottom line value as merchandise: how to "package" them, how to position advertising and promotion for them, how to price them, how to "move" them. Some writers realized that in order to satisfy this growing cadre of specialists, they'd have to learn a kind of writing very far from the sort of thing they'd been doing until then—not synopses but sales pitches cunningly contrived to subdue the anxieties of publishing personnel ranging from art director to head of sales to subsidiary rights director to publicity chief to vice-president in charge of marketing to editor.

If you piled all the outlines I have read in my lifetime on top of each other, they would reach the summit of Kanchenjunga. So I can say with some authority that few writers have grasped this crucial distinction between outlines designed to guide oneself through the complex terrain of plot and character and those written to turn on the staff of a publishing company. All too often I see chapter-by-chapter outlines of fifty or a hundred pages describing every twist of story and every nuance of character development, outlines that are 95 percent longer than most editors have the time or inclination to read, and that are deficient in many elements that are tempting to potential buyers. Such outlines should go back where they belong: beside the author's typewriter, helping him construct his book. But they don't belong on an editor's desk.

Let's look at the components of a solid outline. Naturally, we have to divide proposals into two categories: those for nonfiction books and those for novels.

Nonfiction books are both easier to outline and easier to sell from an outline. A nonfiction work lends itself to easy encapsulation because its subject is finite and usually defines itself. A war, a biography, a history of a period, a murder case, seventeenth-century Dutch art, Greek cooking, traveling through Japan - all are limited by the factual information available, at which point it becomes a matter of selection and arrangement of that information. It is relatively easy to convey in an outline an author's familiarity with his subject, his enthusiasm for it, his authority, the uniqueness of the proposed work, its organization, and so forth. It is even possible to convey in an outline how good a writer the author is. A good nonfiction outline is a pleasure from the viewpoint of publishers. It takes five minutes to read, requires little imagination to grasp, and enables an editor (or anyone else at a publishing company) to make his mind up quickly and decisively. It is hard for most writers to visualize the joy it gives an editor to be able to reach a clean, fast decision, and this factor may have contributed in no small measure to the increased predilection for nonfiction at most trade publishing companies over the last few years.

A solid nonfiction outline should follow these basic precepts:

· Establish your authority. At the very outset you must show the publisher your credentials. It has become extremely difficult to sell proposals by writers who do not have a Ph.D. or M.D. after their names or cannot otherwise demonstrate long and vast experience in the field in which they are writing. As you might do with any other resume, if you have great bona fides, pile them on; if you don't, then stress the next best thing, to wit: "Although I am not an M.D. I have written about medical subjects for leading national magazines for the last twenty years." And if you cannot even boast that much, I strongly advise you to write a large piece of the book so that your authority and familiarity with your subject shine through by virtue of the writing itself.
Present your thesis dramatically. The best outlines read like the best short stories, and like great stories should have a beginning, a middle, and an end. In enunciating the subject, you should present a disturbing problem that cries out for resolution: "The teenage suicide rate has tripled in the last ten years." "As the First Continental Congress convened, the American colonies seemed very far indeed from the unification we take for granted today." "Although there are many books available on Jewish cooking, to date there is no comprehensive work on cheese blintzes."

You now have the editor worried: how did the teenage suicide rate get to be so bad, what is the profile of a potential teen suicide, what can parents do about it? Here is where you display your intimacy with your subject, for as these questions occur to the editor considering your presentation, one by one your outline answers them satisfyingly and, if possible, entertainingly.
Like a good short story, your outline should rise to a satisfying climax, and here is where your writing skills must be displayed in all their splendor, for editors know that an author's interest and energy tend to flag in the final stages of a book and they want to see whether you can sustain the same level of intensity in the finale as you did in the opening stages of the work. You should therefore describe in vivid detail the culmination of your book. Whatever it was that originally inspired you to write it must be communicated here, and whether you're writing a biography, history, medical self-help book, or even a blintz cookbook, you must demonstrate in these final passages of your synopsis your intense absorption in your material. Depict in full dress that final battle, that cure, that turning point in the life of your biographical subject. Let your editor know you're in love with this idea and will live in a constant state of torment until you have gotten it out of your system.

· Furnish a table of contents. Each chapter of your proposed book should be summarized in a short paragraph. Although a table of contents would appear to go over the same ground as your synopsis, it actually serves a different purpose. A synopsis is a narrative summarizing the topic and exhibiting the author's grasp of his material and writing skill. A table of contents demonstrates the author's organizational abilities and conveys the "feel" of the final book. It may seem redundant, but editors demand it. Don't leave home without one.

· Anticipate a publishing committee's questions. However masterfully you have synopsized your book, some important questions will probably linger in the editor's mind, and others will be raised by non-editorial staff members of the publishing committee. What competitive books exist or are in the works? What is the potential audience, and how can a publisher be sure that that audience will buy the book? Could a Big Name be induced to write an introduction or endorsement? Can you state with assurance that this organization or that society will approve the book, recommend it to members, purchase a minimum number of copies?

It is unfortunate that authors must do the sort of research that is the rightful province of publishers, but because publishing people have so little time and money to spare for market surveys, library searches, legal investigations, profit-and-loss evaluations, and the like, any author who does the publisher's homework for them will definitely raise his chances of landing a sale. So go the extra mile. You've always said you could do a better job than a publisher: here's your chance to prove it.

The outlining of fiction is an entirely different ball game. None of the criteria that enable editors to make quick and easy decisions about nonfiction book proposals applies to fiction outlines, for almost everything is subjective. Although it is even more important for a novel outline than it is for a nonfiction book outline to read like an enthralling short story, even wonderful novel outlines don't necessarily demonstrate convincingly that the writer is a good storyteller, has fine descriptive abilities, is capable of capturing subtleties of emotion, or knows how to build character and relationships. And, paradoxically, any attempt to portray such elements in an outline often results in a long and tedious one that is excruciatingly dull. Furthermore, nothing in an outline can demonstrate whether the author can go the distance or will falter or lose energy or inspiration during the writing of the novel. It is far more common for novelists to slump in the midst of a book than for nonfiction writers, whose inspiration derives from already existing material rather than from anything they have to create. And while editors who have the novelist's track record to go by can say, "See? He finished six novels, what makes you think he isn't going to finish his seventh?" a novel proposal must be judged by a lot of non-editorial people at a publishing company. Many of them are a little suspicious of, or even downright hostile to, the creative process, and therefore skeptical that a novelist will be able to stay the course. What is worse, they can relate many unfortunate experiences bearing their skepticism out. Resistance to fiction outlines runs extremely high at most publishers, and that's why one finds prodigious piles of them on so many editors' desks.

There are important exceptions, of course. The well-established novelist can land a contract on the basis of an outline, and often a brief one. And writers doing novels in a series or proposing books for a particular line, will of course have to do outlines. But authors who have no solid fiction track record are going to get nowhere in their quest to raise funds to complete their books. Or if they do, miraculously, get an offer, it will undoubtedly be a stingy one, because the publisher is being asked to invest his risk capital, and the costs of risk capital are extremely high.

I therefore advise anyone in that position to write a long, boring, detailed outline of his novel-to-be, take it to his word processor, and sit down and write the novel. Not a third; not a half; all of it. Shift the risk from the publisher to yourself - because it means shifting the rewards as well. Give an agent a finished novel that he likes and watch him do his thing: he can auction it, set a tight deadline for decisions, get a high price, break the author out.

What's that you say? You can't afford to write that novel on speculation? I'm afraid you'll have to do what the novelists of yore did: they begged, borrowed, stole, got day jobs, or married into money. One of my colleagues, a very tough lady agent with a tongue like a trash can, was once visited by an author who presented her with a portion and outline of a novel. She read it that night and next day summoned him to her office. "It's great," she declared. "It's brilliant."

The author was thrilled. "So?"

"So?" Whaddya mean, so?"

"I mean, what happens now? Are you going to hold an auction or what? Are you going to seek a high floor or solicit a preemptive...?"

"Hold on. I said it's brilliant, I didn't say I could sell it. For me to sell it, you have to finish it."

The author turned pale and started to sputter. "But...but...how am I going to support myself while I'm finishing it?"

"Drive a f*****g taxi," she said.

He drove a f*****g taxi and returned, eight months later, with a great novel, which she sold for a lot of money and which established him as a leading commercial novelist.

Applications for chauffeurs' licenses are now being accepted.

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It's reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.

The Rise and Fall of the Mass Market Paperback - Part 2

Efficiency Strikes the Distribution Business

While the mass market book book business appeared to be healthy, in the early 1990s the infrastructure of paperback book distribution was undergoing significant changes. The dramatic rise and expansion of bookstore chains like Barnes & Noble siphoned business away from wholesalers’ franchises, both in cities and suburban malls. Computerized sales information enabled publishers, wholesalers and retailers to better track the performance of categories and identify winners and losers among specific books and authors. And the stunning advent of amazon.com leveraged the awesome power of the Internet to link supply and demand.

Assessing these patterns, paperback distributors began asking themselves why they needed to employ human labor when they could more efficiently and economically service bookstores and other outlets by shipping books directly to the retailers. Yes, it would mean that the human element -- the guy in the station wagon who knew which towns loved historical romances and which preferred contemporary ones, which adored westerns and which were big on science fiction – would be removed from the equation. But -- well, that was progress!

The big agencies pulled the plug in that summer of 1996 when whole fleets of drivers were discharged, and in the following years the wholesale distribution workforce was reduced to a fraction of what it had been in its heyday.

The Bottom Drops Out

Most publishing executives were slow to recognize the implications of the nosedive in the wholesale paperback distribution business, dismissing it as one of those occasional and inevitable shifts to which the industry had always adapted. What was the big deal? Fewer romances and other genre novels would be published, wasn’t that all there was to it?

In fact, the consequences were nothing short of calamitous. The impact was felt in every sector of the publishing business, from what got written to what got published to what got read. It wasn’t long before customers in west Texas or Nebraska or South Carolina discovered that many books by their favorite authors were no longer being stocked in their local stores. When customers or store owners complained, they were told to take it up with the distributor – in Vancouver or some other far-flung location reachable only by an 800 phone number.

The Rise of the Airport Model

A key result of the shift in distribution patterns was the streamlining of the way retailers ordered books from publishers. Why pick and choose among thousands of titles that might sell only a handful of copies? Wasn’t it better to follow the formula that worked so well at airports, ordering only the top fifteen or twenty bestselling books by branded authors like Nora Roberts, Robert Ludlum, John Grisham and Stephen King?

As paperback publishers awoke to the new buying patterns, they were forced to choose between star authors and those whose sales performance fell below a minimum level. At first the triaging was restricted to marginal genres like westerns, but as the last decade of the twentieth century progressed the definition of “marginal” broadened to embrace every category of book that fell below an ever-stricter definition of commerciality, a process akin to the lowering of the bar in a limbo dance. Limbo indeed: authors who had made a living for years from sales of ten or fifteen thousand copies of their paperbacks were now being dropped by their publishers as the minimum sales quota increased to twenty or thirty thousand copies or more.

Like the men and women who distributed their books, a lot of authors were thrown out of work, and the grim truth finally dawned on publishing executives. It wasn’t just genre titles that were affected by the seismic shift in book distribution; paperbacks of every kind were being hit by the pullback.

“What’s the Author’s Platform?”

As the publishing industry entered the twenty-first century, book industry executives began requiring editors to produce elaborate profit and loss projections and other corporate-style analyses of the potential viability of books and authors. What was the sales performance of previous books? Did they “sell through” satisfactorily or did returns cross the threshold of unprofitability according to the latest formulas devised by bookstore chain number-crunchers? The mantra of “The Bottom Line” was invoked ad nauseam at every editorial committee, and editors were constantly reminded, “We can only afford to publish hits. If you can’t project a big profit on a book, turn it down.”

Editorial financial projections were aided by an Orwellian innovation called BookScan, instituted early in 2001 by Nielsen Broadcast Data Systems, the world's leading provider of airplay tracking information for the entertainment industry. BookScan offered subscribing publishers weekly analyses of sales by most major book retailers. Within moments, editors could access vital sales statistics on previously published books and authors, elevating performance parameters over traditional but less quantifiable values like compelling storytelling or stirring prose.

And what about the author? Was he or she attractive and mediagenic? Did he or she have a “platform” – an organizational base such as a hit television series or chain of fitness centers capable of promoting the sale of books? Was the author willing to buy large quantities of books for giveaway or resale by his or her franchise?

More and more, the importance of traditional literary criteria has taken a back seat to “The Numbers” and “The Platform.” Promising but modestly successful novelists have discovered they cannot get their second or third books published, and aspiring newcomers find that they cannot sell their books at all. As for nonfiction, no matter how compelling a memoir or business guide or social commentary might be, publishers are disposed to reject it because the author was not “branded.”

Faced with these grim options, authors have resorted to increasingly frenzied measures to get published. Established novelists are writing under pennames to disguise the poor performance of their earlier books, or strive to produce blockbuster “breakout” novels long on sex, violence, and plot but short on craft and characterization. Without supportive publishers to carry them while they developed their talents over four or five books, new novelists resort to gimmicky concepts with “log lines” that can be pitched like movie scripts. Nonfiction authors plump up their credentials or hire public relations specialists to burnish their images and enhance their media exposure. Others subsidize the purchase of large quantities of their own books to drive up their “numbers.” Literary agents are besieged by writers frantically seeking the advantage of representation by successful dealmakers. Self-publication has soared now that electronic and print technology and Internet promotion have brought the costs of vanity books down to proletarian levels.

As much as authors would dearly love to bring back the robust mass-market paperback era, it’s no likelier than a return to steam locomotives. More and more, the mass-market paperback is becoming a manifestation of blockbuster publishing, where economies of scale enable publishers to make a profit on immense shipments despite high returns. Because retail sales have shifted from racks to bookstores and the Internet, new and midlist works are increasingly being released in trade paperback.

The shift to trade paperbacks may help save midlist books. A major advantage of the trade paperback format is that it is the preferred size for print on demand reprints. “POD” takes all the guesswork out of bookselling, and the publishing industry can no longer afford to guess who will buy its products. Dismaying though it may be for old publishing hands to contemplate, the future of book distribution belongs to print on demand.

The end of the old mass-market paperback distribution system coincided with the birth of a new method of delivering books to readers. Though e-book technology has encountered innumerable obstacles, its potential to reach a vast readership is no longer seriously disputed. What sort of literature this new medium produces, and how it will make money for authors and publishers, are fascinating sources for speculation. And speculate we shall continue to do as the 21st century unfolds with its technological wonders and fascinating business model.

Copyright © 2004 by Richard Curtis. This article was first published by Backspace, the online forum for writers, editors and agents.

The Rise and Fall of the Mass Market Paperback - Part 1

For many publishing people, the world as they had known it ended in the summer of 1996. On a warm brilliant day I sat down at a table in a Spanish restaurant for what I thought would be a typical lunch with the publisher of a mass-market paperback company. I found him slumped head in hands over a seriously stiff drink. “What’s the matter?”

He looked up, miserable. “You haven’t heard? The wholesale independent distribution business is imploding. Hundreds and hundreds of drivers have been let go.”

I groaned, beckoned to the waiter and pointed to my friend’s glass. “I’ll have the same.”
The collapse of the distribution system that fueled the mass-market paperback revolution was a trauma from which the book industry has not recovered to this day. To appreciate its impact requires a brief description of the way books were distributed after the post-World War II paperback revolution that swept the U.S. publishing industry.

By long tradition, trade or general interest hardcover books have been offered to bookstore buyers by publishers’ sales representatives. The store buyers select which titles they order and the number of copies they will stock in their stores. Though released year-round, hardcovers are offered on a seasonal basis in publishers’ catalogues, which are issued several times annually. Whatever the reality may be, the theory is that they will have a decent shelf life and, if popular, remain on display for months or longer. This business model has not changed fundamentally from the last century to the present time.

Mass-market paperbacks (as opposed to the larger trade paperback format) are a very different matter. Introduced in 1939, “pocket books” took hold in the ‘50s and ‘60s, but publishers soon realized that the hardcover distribution approach didn’t work. They needed a different sales model and turned to the one used for magazines.

Every month, magazines were shipped to depots – “agencies” – around the country. Drivers picked up the magazines at the agencies and visited stores on pre-assigned routes in towns and cities. Most of the stores were not bookshops but rather supermarkets, candy stores, newspaper stands, and bus, train or airport terminals. Each month, these salaried employees collected the previous month’s unsold publications and replaced them on the store’s racks and shelves with new stock.

To paperback book publishers, this existing distribution network was the perfect vehicle for delivering their product to a far-flung readership. Thus it came to pass that paperbacks began hitching rides with magazines. And that too is how they came to be released on a monthly schedule. After 1956, when the leading magazine wholesaler went out of business, a number of entrepreneurs set up shop as independent wholesale distributors (“ID’s” or “rack jobbers”), handling mostly books.

Because they were a monthly phenomenon, paperbacks did not enjoy a long shelf life; the exigencies of returning paperbacks, when the distributor cleared the racks to make room for the next month’s releases, made for an ephemeral existence. What is more, the unsold copies were usually not redistributed or remaindered. Because paperback publishers had to pay freight for returned copies, many of which were dirty or damaged, the stores found it more efficient simply to strip the covers off the unsold books, send the insides to be pulped, and return only the covers to the publishers for credit when settling accounts.

Since paperbacks were returnable, distributors delayed paying publishers until unsold stock was returned. To account to authors for the gap between copies sold and royalties released, the paperback publishers took a page from the creative accounting systems devised by the hardcover industry, holding large amounts of royalties for long periods until returns were finalized. Royalty reports to authors were deliberately fashioned to omit information about the number of copies printed, shipped, and returned, or about the amounts of royalty reserved pending finalization of returns. This suppressing of vital sales data gave publishers carte blanche to retain royalties that might have been remitted to authors. Some publishers got too creative and held royalties forever. Until the 1990s, when pressure from agents and from writers’ organizations forced publishers to reveal significant details, mass-market houses reported only net sales with no information as to how they arrived at those net figures. As I wrote at the time, it was like reporting batting averages to baseball fans without revealing how many at-bats or hits the players had had.

The Paperback Industry Blossoms

Unlike retailers of hardcover books, paperback booksellers seldom had much say over which titles were stocked on their racks. They passively received the current month’s selection and passively watched the unsold stock loaded into the distributor’s vehicle a month later. The authors of those books watched the process too, but some of them figured out ways to influence the wholesalers to promote their books. A number of leading authors, on their own initiative or sponsored by their publishers, began visiting the wholesale agencies and pitching their books at executives and ingratiating themselves with the jobbers. Some of the more energetic writers went so far as to drop in on drivers as they loaded their vehicles, bringing coffee and donuts and promotional material to inspire them. This technique was particularly successful with romance fiction, which sold most abundantly in the supermarkets that women visited two or three times every week. It did not hurt if the authors were attractive. Many a lovestruck driver stocked extra copies of a title after a pretty novelist shared a pre-dawn breakfast with him on the tailgate of his station wagon.

Although a growing number of traditional bookstores stocked mass-market paperbacks, it was the wholesale distribution network that fueled the huge growth of the book business in the last quarter of the twentieth century, spawning a thriving industry and a generation of bestselling authors. Even when those authors graduated to hardbacks, paperback reprints of their books drove sales overall. In the late 1980s and early ‘90s, mass-market paperback revenue made the difference between feast and famine for hardcover publishers. Income from romance fiction alone contributed 25% of the cash flowing into the trade book industry.

Smart publishing executives recognized how heavily they depended on mass-market income for their profits. But that message did not always filter down to their editors. Many of them, possessing only a hazy idea of where the money for their acquisitions came from, spent profligately and ended up taking a bath on books and authors that flopped miserably. Or they simply acquired whatever they pleased without giving much thought to the bottom line, failing to realize that they were indulging in a luxury largely subsidized by paperback book revenue. Many lived in denial that their beloved first novels, short story collections, poetry anthologies and other elevated forms of literary endeavor were financed by romances, westerns, thrillers, horror novels and space operas.

In the concluding installment, you'll read how efficiency came to the paperback distribution business. It was not an entirely welcome guest.

Copyright © 2004 by Richard Curtis. This article was first published by Backspace, the online forum for writers, editors and agents.

Getting Back the Rights to Your Books, Part 2

Although you may succeed terminating your agreement with your publisher and getting back the rights to your book, certain provisions of your original contract may survive its termination, depending on how the termination clause is worded. If the publisher has an option on your next book, it may remain in effect even when the first book goes out of print. Your warranties to the publisher that the book is not obscene, libelous, defamatory, and so forth generally remain in effect after the contract is terminated; any still-active sublicenses contracted by your publisher also continue until they are terminated.

It is legitimate, too, for the publisher to require you to pay back any debts to the firm you may have incurred. For instance, if you bought fifty copies of your book from Random House and charged them against your anticipated royalties, but the book did not earn those royalties, Random House has the right to ask you for a check for those copies before giving you a reversion of rights. Some publishers try to require you to pay back the unearned portion of your advance in order to get your reversion, but that is totally unacceptable. Another legitimate “debt” you may incur is an overpayment of royalties to you, owing to your publisher’s underestimate of a reserve against returns. Considering the high reserves against returns publishers often retain, I would consider an overpayment to be one of the least likely events in the spectrum of publishing possibilities.

Your termination clause should give your publisher the right to sell off the remaining stock of copies after termination, though of course not to print more. Authors should request the right of first refusal to purchase from the publisher all overstock or remainder copies at the best prevailing market price. You may want to buy some to stock your library, submit to prospective new publishers, or resell at a profit.

Finally, upon termination of the contract you should be entitled to a final accounting from your publisher. As we’ll see, there may be an undisclosed reserve against returns on your publisher’s ledgers, and now is the time for it to be disclosed and for any balance in your favor to be settled up.

To sum up: generally speaking, the more specific a contract is about reversion procedures, the better it is for securing a reversion. For instance, if the reversion language says something like, "If sales in all formats for two consecutive royalty periods combined total less than 500 copies, the right shall automatically revert to the author." Or, "This agreement shall be in effect for five years from the date of first publication, after which all rights conveyed herein shall automatically terminate." Those are slam-dunks because they require nothing at all for the author to do except add up sales or look at the calendar.

However, few publishers incorporate that boilerplate in their contracts, nor will they go that far in a contract negotiation. In all likelihood, there will be such conditions as:
1) At the end of the term the publisher shall have X months to decide whether or not to do a new printing, and Y months after that decision to actually print a new edition; or,
2) The reversion is not automatic, but the author must instead serve notice, failing which the contract is deemed automatically extended until such notice is served; or
3) Instead of a specific number of copies sold, the contract has a vague out of print clause such as, "Should the Work no longer be available for retail sale."

Wherever definitions are vague, it's best to get written reversion confirmation from the publisher. You can't say, "My royalty statements show zeros and in my opinion the book is out of print and you have thirty days to give me my rights back because after that I'm going to sell the book to another publisher." Not only will the publisher of the first part dispute your claim, but the publisher of the second part may refuse to offer you a contract until you furnish that reversion letter from your publisher.

Putting all these elements together, we arrive at a rather formidable clause, but one well worth pushing for, however hard it is for you to envision that one day your book’s life – at least its first life – will come to an end. Here it is. Negotiable provisions are left blank:

If after ______ years from date of publication the work is out of print, and the Author makes written demand to reprint it, the Publisher shall, within sixty days after receipt of such demand, notify the Author in writing if it intends to comply. Within six months of notifying the Author of its intention to comply, Publisher shall reprint the work unless prevented from doing so by circumstances beyond its control. If Publisher fails to notify Author within sixty days that it intends to comply, or within six months after such notification the Publisher declines or neglects to reprint the work, then this agreement shall terminate and all rights granted hereunder except those deriving from the option and warranty provisions shall revert to the Author, subject to licenses previously granted, provided the Author is not indebted to Publisher for any sum owing to it under this agreement, with the exception of an unearned advance. After such reversion, the Publisher shall continue to participate to the extent set forth in this agreement in monies received from the sale of remaining stock or from any license previously granted by it. Author shall have the right of first refusal to purchase from Publisher all overstock or remainder copies at the best prevailing market price. Upon termination of this agreement, Publisher shall provide Author with a final accounting detailing copies printed, copies shipped, copies sold, copies returned, and reserve against returns, and shall release said reserve to Author. Upon termination, Author shall have the right for thirty days thereafter to purchase the films, plates, PDF file or other production materials from Publisher at one-fourth of their cost (including typesetting). For the purposes of this paragraph, the Work shall be considered in print if it is available for sale in the United States in a full length English language edition and is contained in Publisher’s customary reorder materials and at least ____ print or electronic units in the aggregate are sold in the last ____accounting periods immediately prior to the Author’s request for a reversion of rights, or if a contract for its publication by a sublicensee of Publisher for publication within ____months is outstanding.

Like most other ambiguous provisions in publishing contracts, termination clauses can be made satisfactory through negotiation. Most publishers have committees or other systems for reviewing the in-print status of their books, and will give up their rights if it can be reasonably argued that those rights are no longer valuable to them or have no potential value in the near future. But the chances for a decision in your favor will be increased if you frame your contractual language carefully to begin with. The rest is a matter of persistence.

Many authors believe that there is a strong market for the recycling of previously published books, but it just isn’t so. Publishers are seldom interested in acquiring reverted books unless (1) the author has become a big name, and (2) the reverted books can ride on the coattails of new books by that author. In fact, though publishers might offer next to nothing for your reverted title, that same “retread” (as the industry sometimes deplorably refers to it) could fetch a handsome price when coupled with your new, unpublished work. Many authors choose to reissue their reverted titles in e-book or print on demand publishing programs. They can generate royalties and the print on demand format can replenish author stocks to service foreign and movie interest.

I have often referred to a backlist of reverted titles as money in the bank. It may be of modest value now, but it will appreciate as your career grows, and when you achieve stardom you can withdraw those books from your ‘’bank” and cash them in for tons of money – unless, upon rereading your early work, you decide that a quiet burial is the more prudent course.

- Richard Curtis

This article is adapted from How to Be Your Own Literary Agent by Richard Curtis, Houghton Mifflin Co., © 1993, 1994, 1996, 2003 by Richard Curtis

Getting Back the Rights to Your Books - Part 1

One of the most remarkable changes I’ve witnessed in the time that I’ve been in the publishing business is the shrinking of the life span of books. When I entered the field, a book of any quality at all could be expected to be available to consumers for several years. Today, we project the age of many books in weeks. If you put a recently published book and a recently picked tomato side by side on a shelf, there’s a good likelihood that the book will rot first.

The change has triggered a pole-reversal in our attitude toward books. Whereas the thinking of authors used to be, “How can I keep this book in print as long as possible?” today it is, “How quickly can I get the rights back?” This shift is reflected in pressure exerted by agents on publishers to install language in their contracts enabling authors to recapture their rights the moment their books are removed from the marketplace. Publishers, too, fight to curtail the term of license they in turn grant to reprinters and other licensees. The idea is for the rights owner to take the dead or dormant property away from a publisher that is not exploiting it and resell it to one that will put it back into play.

Although one can get very nostalgic about the good old days when writers wrote for posterity, it would be foolish not to play by the rules that govern the modern-day game. If a publisher is committed to a book and works to keep it available to buyers, there are usually contractual provisions for retaining the rights or extending the term. But if a publisher can’t or won’t support that book, it stands to reason that the property should be recovered and recycled.
Most often new authors are so excited about selling their first book that they seldom look beyond publication date when they contemplate its fate. They cherish the perfectly understandable fantasy that it will remain in print for years and years and will be available in bookstores for the foreseeable future. That it might go out of print one day, considering it isn’t even in print yet, is a matter of very remote concern to them. And that the book might go out of print within a year or less after publication is so shocking that our first impulse is to dismiss the suggestion with a (nervous) laugh. Most books, however, do go out of print eventually, few being relegated to the status of deathless classics. Even more disturbing, an increasing number of them go out of print in a very short time.

The reason for this lies in the ferocious competition among publishers for shelf space in bookstores. Thousands of books sweep into the stores every month, enjoy their moment in the sun, and are swept out again on the tide of next month’s releases. None but the hardiest survive the deluge. Though you may receive royalty statements for years, the actual activity of your book can often be measured in days. The “sales” reported to you every six months may not really be sales at all, but merely released reserves – sales revenue held by your publisher until it is clear that the books shipped will not be returned for credit. Although your publisher lets a little of that money go every six months, it may actually have been collected during the first few months of your book’s existence.

One day, then, you may wake up to the realization that your book has had it. After a suitable period of mourning, your thoughts will turn to recovering the rights to it in the hope that one day you can sell them to another publisher. It is wise to try to recover them, for if you are normally ambitious, assiduous, and talented, you are going to become popular if not famous, and your earlier books may be in demand. They can be an asset of tremendous potential, and so you are well advised to look hard at the out-of-print and termination provisions of your contract when you are negotiating it, however difficult it is to conceive that you will need them.

Most publishers have some such provisions in their contracts as a matter of course. In some instances the termination clause calls for automatic termination of the contract and reversion of rights after a fixed period, generally three to seven years. From an author’s viewpoint this is highly desirable, as it completely eliminates debate over the definition of “out of print,” a debate that can hang you and your book up for years.

Naturally, if something is highly desirable to an author, there must be something seriously wrong with it from a publisher’s viewpoint, and that is the case here. The way a publisher sees it, even if a book is long out of print there is no telling when the author may be exalted to bestseller status with some future book, at which point those dormant early books take on tremendous value. Publishers will therefore try to bargain for an ambiguous out-of-print clause that will enable them to hold on to the rights for as long as possible. Something along these lines:

The book shall be considered in print if it is on sale by Publisher or under license granted by Publisher, or if any license for its publication remains in effect.

In other words, your book will be considered in print as long as it is available to the consumer in any edition controlled by the publisher, including its own and those licensed to other publishers such as reprint houses, book clubs, and foreign publishers. But the above wording raises more questions than it answers. What does “on sale” mean? Copies in the bookstore? Copies in the warehouse? Three copies in the bookstores? Ten copies in the warehouse? And what about those licenses to other publishers? Does your publisher have adequate termination provisions in his contract with the book’s Turkish publisher? And how do you ascertain the number of copies in stock, anyway? Visit your publisher’s warehouse? Visit your Turkish publisher’s warehouse? The nightmare potential here is very high.

The advent of electronic publication produced a solution to many of these issues. Publishers Weekly reported in the fall of 1998 that as soon as he saw a print on demand press, one publishing executive exclaimed, “Now, we can keep books in print forever!” Many agents, including yours truly, reacted very badly to this remark, because print on demand and e-books clearly gave publishers an excuse to hold onto rights in perpetuity. A book could be out of print for decades, yet its publisher would be under no obligation to give back the rights because the text was still in the memory of its computer, where it could be summoned to fulfill an occasional print on demand order or deliver the text to an e-book buyer.

Agents and authors began promoting a new definition of “out of print” that would no longer be as vague and ambiguous as the one that had prevailed up to then. The prevailing model now is that as long as the publisher reports X copies sold every year or pays the author Y dollars annually, the publisher may keep the rights to the book. This becomes a sort of annual rent on your property.

Though I staunchly advocated this arrangement, I was skeptical that publishers would spring for it, and I wrote, “As this solution is imaginative and simple, I cherish little hope that it will be adopted by American publishers.” I’m happy to report that my pessimism was unjustified. Almost all American publishers have adopted it, or at least will accept it when an author or agent demands it. However, the X’s and Y’s must still be negotiated. Obviously, your strategy is to bargain for a threshold defined as the lowest number of copies sold or fewest dollars reported annually.

Bear in mind that your publisher doesn’t necessarily have to reprint the book to maintain control. It can also license certain rights to other publishers. Suppose your Random House book is out of print and you serve notice that Random must either print a new edition or revert the rights. Rather than opt for either alternative, Random could sell paperback rights to Pocket Books or Berkley or some other reprint house, and would be within its rights to do so. Of course you might be glad to see your book back in print; you might also die a little every time you contemplate Random House taking its 50 percent share of that paperback reprint money.

Is there any way you can prove that your book is out of print? One simple but time-honored way is to get a friend, or a friendly bookstore, to order a copy of your book from the publisher. If the book is out of print, a clerk at the publishing company or warehouse will send back a written notice to that effect. You now have written evidence straight from the horse’s mouth. However, the publisher might state not that the book is out of print but that it is out of stock, which is not quite the same as out of print. “Out of stock” means your publisher has exhausted its inventory, a state of affairs that may be temporary, for the stock can be replenished either by returns from bookstores or by new printings. A book can therefore be out of stock without being out of print. But frequently, “out of stock” is a prelude to a book going out of print, so it can help your case to ascertain from your publisher that the book is out of stock.

Sometimes the only thing that prevents a publisher from declaring a book out of print is a large stock. You can therefore expedite a declaration of out of print by offering to buy back the remaining inventory. Having determined that your book is no longer active, you should then serve notice on your publisher that you want your rights back. Even if your contract provides for automatic termination, it’s a good idea for you to get the company to send you a letter declaring the contract terminated and reverting the rights to you, so that you will have written evidence that you are free to enter into a contract with another publisher.

The clock starts ticking from the date your publisher receives your request, and though your publisher may respond promptly, it’s more likely that you won’t hear for many months, if at all. There are two reasons for this. The first is that many reversion requests are accorded extremely low priority by publishing houses. Each publisher has a procedure for evaluating such requests, but because many factors go into making a determination, as we have seen, the decisions are by no means cut-and-dried. I find that getting action from most publishers on reversion requests is much harder than getting money from them, so we’re talking hard, my friends. One publisher told me that its committee for reviewing reversion requests meets only twice a year. But there’s another and more disturbing reason why publishers balk on handling reversion requests: they may want to stall for time while preparing the book for e-book or print on demand editions, which would in effect enable them to keep the book in print in perpetuity. A degree of tenacity, then, is called for in following up reversion requests.

It is not always desirable to go by the strict letter of the contract, however, and a certain amount of common sense, compassion, or both, comes into play. There have been occasions when, after I pounced on a publisher with a request for reversion, I’ve received a call pleading for more time to evaluate the situation. “Look, we know the author’s first book is out of print and you have us dead to rights. But if you could extend our deadline until we bring his second book out, we’ll do a new printing of the first to tie in with publication of the new one. And as long as you’re being so literal about the wording, may we remind you that we haven’t canceled her contract even though her new book is three months late. So, how about cutting us a little slack?”

In such circumstances (and even if the new book isn’t late), I sometimes counsel my author to grant the publisher that extension, for in the overall picture such a course may be of greater advantage than recapturing rights that are of little value at the present time.

- Richard Curtis

This article is an expansion of a chapter in How to Be Your Own Literary Agent, Houghton Mifflin Company, copyright (c) 1983, 1984, 1996, 2003 by Richard Curtis. All rights reserved.