Ep. 46: Don’t Get Caught Out! An Author’s Guide to Protecting Themselves in Publisher Shutdowns

Welcome to the Pub Date Podcast, the show where two book broads discuss what should happen before, during, and after your book publication date. Brought to you by Broad Book Group with your host Vanessa Campos and Jen Dorsey.

Happy Friday, everyone! I'm Vanessa Campos. Hi, Jen, how you doing?

Hi, I am Jen. I am well, how are you? Happy Friday! Happy beginning of summer, even though it's not, I guess, officially summer, but in my mind, once the Indy 500 is over, it's summer.

So you gotta have those cultural landmarks to kind of specify when things start and stop, right?

Yeah, absolutely. Did you do anything fun for Memorial Day weekend? Sleep? Grill?

Does it count as fun if I don't remember what I did?

Yes, it does.

Wait, you actually did something really fun. You got out of town.

Finally. Yeah.

Oh my God.

Finally. Our 25th anniversary was in November and we have tried to take some getaways and life has happened and we've had to cancel 3 of them, I think. So finally this weekend we're like, you know what? I don't care. We're going no matter what's going on in the world. So yeah, we went to New Orleans and I had fun. I probably had too much fun. No such thing. I fell in a pothole and I have a bruised ankle and a bruised foot. But you know what? It's a good reminder to pace yourself, but also have a good time. So we did.

Yeah, that is a very good reminder to pace yourself and take one day at a time. And every day should be worth celebrating. Don't just save it all up for one day. Or one weekend.

Do a little bit, sprinkle it. Nice sprinkles. And, and we saw some amazing bookstores, uh, while we were down there.

So, okay, jealous. Which one was your favorite?

I know. Well, my favorite was closed for Memorial Day. That's Garden District Bookshop, which is on Britannia. It's right down the street from Commander's Palace, which is my favorite restaurant, and right down from Lafayette Cemetery Number One, which literary note, lots of things in the Anne Rice books take place in that cemetery. So very cool vibes, very Southern Gothic vibes. So it was closed and I was bummed, but we checked out a couple of other— there's a lot of used bookstores, so all kinds of cool old stuff.

Oh, I love a good used bookstore. I like to go in there. I don't know what's your favorite thing to do at a used bookstore. We're getting off topic for today's show, but used bookstores are like kind of like an antique roadshow. Yeah, for, for book people. I love going in and finding, um, old Hemingway books. I don't know, it's just a thing I do. Old Hemingway books are just like, if I find one, I get one. Do I have the same one? It doesn't matter.

It's my hoarding thing, right? Exactly. You're— I heard someone say recently, building your book library is like building a wine cellar. So don't think of it as you're buying too many books. You are curating your collection. And so that's now my excuse when I go book shopping. Oh, well, I'm curating my collection, right?

So to all my nieces and nephews, just, I'm curating what I will, you know, bequeath to you.

That's right, exactly.

There you go.

Your generational book wealth.

There we go. Generation— I love that. Generational book wealth. That's good.

Yeah, thanks.

So let's get into today's topic, which I think is, is a very interesting one and one that, you know, popped up when I was a, a baby book publishing person. And I thought to myself, I was like, that'll never happen. It's what happens if your publisher shuts down overnight?

Ooh, that's a good thing to talk about because it happens. And yeah, it's happened a lot recently. Not to us, I might admit.

We're cool.

Knock on wood.

Knock on wood. Yeah, we're good.

But yes, it has happened. It is happening for various reasons. I think, you know, COVID shut some publishers down. Or your publisher gets eaten by another publisher, which is a whole other box of problems and opportunities. But yeah, sometimes publishers and literary agencies also, um, will close overnight. And that just happened recently to one of each, to a hybrid publisher that we know and to a literary agency. So what do you do?

What do you do? Well, first and foremost, I think I, I never love the idea that it's just all of a sudden overnight. It's— it takes a really— in my opinion, I think it takes a really long time for you to get to that point. I get that business is business. Books are still a business, although I don't like to think of it that way. Um, I do like transparency though.

Yes, I would agree with that. And I agree with you on things don't just happen overnight. Um, I think a lot of decisions are made in those situations that bring a publishing company or a literary agency to that point where they then all of a sudden have to declare bankruptcy or shut the doors. Um, and the lack of transparency with employees possibly, and definitely with their authors, plays a big role in that, right? And then people are surprised, and they shouldn't be surprised.

Yes, exactly. And I, I don't like that. I don't like surprises. Well, I do like surprises, but in this case, I don't like surprises. I like being as transparent as possible because even in book publishing doesn't matter what level of publishing you're in, I think, you know, it's a partnership because as the author you're sharing your, your, your IP, your creativity, your content with the publisher who then benefits from it and then helps, you know, it's a partnership, it's mutually symbiotic.

It is. And, you know, as we've discussed on this show, that partnership can look different, right? So you can be in a traditional publishing partnership where you as the author are what you're bringing to the table is, is that IP, and the publisher's bringing in the funding to make the book happen and make marketing happen and all that. You can be in a hybrid relationship where maybe you've got some financial skin in the game, where you're going to be, you know, putting up money for part to pay for the print run or to pay for the editorial, and the publisher's putting in some money to pay for some of the other bits and bobs. That's kind of that deal. Or you could be in just a straight custom publishing relationship where you're paying for the whole thing. You're working with the publisher as really as someone who's providing a service to you. I think that in all 3 of those, you're right, it's some level of partnership. And so you've got to know where you stand when you sign that contract. And hopefully you have signed a contract that will protect you if something like this happens. Yes.

So we're not lawyers. No. We've played one on TV before.

Disclaimer.

We're not lawyers, but we've read a lot of agreements over the years, both literary agent agreements, foreign rights agreements, translation rights agreements, the whole thing. We've acquired books together. We've— I've actually gone through a few rights reversions process in the past, and there are a few clauses in there that I think people should pay attention to.

Yes.

Do you want to go over those with me?

Oh, I'd love to. I'd love to give my non-lawyer, my non-lawyerly opinion. Um, but yeah, from, from an editorial publishing standpoint. So, you know, I think when something like this happens, when your publisher closes— let's start with them before we start with talking about agents.

Oh yes.

You know, people rightfully so are immediately concerned, well, what about me? What about my book? What about my project? No matter what stage it's in, like If you're in the process of doing, writing your editorial, what happens? If you've already published the book and there's inventory and there's, you know, copyright, whether you're owning it or the publisher is, you know, what does that mean? So I think before you do anything, before you sign anything with anyone, you need to have a really discerning eye look at your contract. If you don't understand legalese, which, you know, Most authors don't.

Why?

Because they're not in the publishing business. That's understandable. That's not a knock on authors. It's just not their area of expertise. You need to have a lawyer or you need to have someone who does have that experience look over your agreement and make sure that for, especially for cases like this, if things go south with the publisher, that you're cared for and protected. So I think the first big clause needs to be the clauses that talk about breach of contract and that talk about termination of contract. So for example, breach of contract, that can mean a lot of things. For example, if your publisher, you know, doesn't fulfill their obligations for editing the book or publishing the book, there should be some language in there that talks about what happens. Um, there will be— I'm not putting my words together very well today— there'll be things that the author can commit breach of contract with. There are things that the publisher can commit breach of contract with. They're not universal, it's by agreement. So look at that really closely, make sure make sure you know what your responsibilities are to your publisher and make sure you know what their responsibilities are to you. If any of those things don't happen, you're officially in what's called breach of contract, right? And that may— and basically that means you can shut it down.

Yes. I think the first thing that I would look for, I think most agreements, most publishing agreements will have some language pertaining to publisher shall— publisher shall make the work basically saying that the publisher is agreeing to publish your book by a certain date. So sometimes it's 12 months, 18 months. There's a timeline that they give themselves to print and publish and make that available to the market. So that's first and foremost, is that there? Because otherwise they don't have anything, they don't have a deadline for themselves. So that may be a flag. Granted, there's a lot of wiggle room sometimes where like an act of God happens and you know, you're just not able to do something, and, you know, you could move the publishing agreement. That's between you and the editor. But I think that's the first thing, right? Termination clauses, those are, those are really good. This is what happens if both parties, like you were saying, don't meet their end of the bargain. Wow, Fridays aren't working for me either. And the other one that I was thinking about is, well, what happens, Jen, if— what happens actually if it does shut down, the publishing house shuts down, and you've already published books, you're already out there, and there's no plan to continue to publish the book that you're doing? I swear this is going to make sense to you guys. Just give me a second. Bear with me here.

I know where you're going.

Yeah, right of reversion is actually a really good clause for everyone to have.

Yes.

So the right of reversion should be in everything, right?

It should. And for those who are new to this language, what that means is when you have a right of reversion clause, if the agreement is terminated by either party or under specific circumstances or under any circumstances, your rights, if you don't control them will be reverted back to you. Any monies due to you should come to you. Sometimes it'll even include what happens to the inventory if there's physical inventory. But at the end of the day, you get your rights back. Now, if you, if you have a publishing agreement where you already own the copyright, that's great, that's wonderful. You own the copyright to the, to the book, but that doesn't necessarily mean that you own the, the physical final files of the book that went to the printer. That doesn't necessarily mean that you own the inventory. So you need to be really clear clear in your agreement about what rights of reversion means. And I would press to make sure that it not only includes having the rights reverted, but also that there's an answer for what happens to those things. What happens to the files of the, the design files, the COVID files, physical inventory? You should try to get all of that in writing, especially if you're working with a hybrid or custom publisher, because, you know, those types of agreements can differ a little bit on who owns what there.

That is a very good point. Oh, thank you for bringing that up. So when you as an author ask for your rights to be reverted back to you for whatever reason, I mean, most of the time it comes to a point where it's like the book isn't selling as well, it hasn't met like sales for the last 2 consecutive pay periods, which tend to be 6 months each. You can definitely ask for your rights back. I would say that if you're in a traditional publisher, um, situation, you're likely not going to get the design files. You likely won't get your cover because that cover was designed and paid for by the publisher. But you're right, in, in terms of hybrid and, and a custom pub, you may actually own that content.

Yeah, and I think especially with custom pub agreements, you should, you should push for that anyway. If you're basically— when you're, when you're doing custom pub work at the end of the day, you're paying for a service, and so you should own that stuff no matter what. I mean, when we do custom pub agreements with folks, that's straight custom pub, that's how we do it. We don't own it, right? You know, it's— it belongs to the author. So, you know, just know what your scenario is and know what that means. And you mentioned something else earlier that I think is worth pointing out, and that's the term act of God, which in a publishing agreement is referred to as force majeure. Yes. So if you see a force majeure clause, which you should, that accounts for acts of God, natural disaster, war, I mean, things that truly, truly, truly no one can control. Do not let your publisher tell you that them closing down is a force majeure. Yeah, it's not. There are reasons that a publishing company closes down that 9 times out of 10 aren't related to a hurricane or a fire. Or World War III or anything like that. So don't be confused by that. Force majeure strictly means those things that are truly, truly out of your control. People screwing up their business and then closing down is not out of their control.

That was definitely within somebody's control. We don't like to see it. We're not— we're not, you know, it's not a good thing when that happens. Uh, no, but there are a few things that I think are smart moves for authors to take, even if you know, your publisher has been around for 100 years, it's never going to go, um, out of business, you know, knock on wood. But I, I like to be proactive, and I like to make sure— if I was an author, here are the things that I would do. All right, you're in agreement, you signed the agreement, you checked all those things that we were talking about. How long does the publisher agree before they actually print and get the book into the market? Um, what are my responsibilities? Are there acts, uh, or are there forced force majeure clauses, um, are there termination clauses, and are there rights of reversion clauses? All those things. I also would like to keep track of every stage. Ask for a production schedule. Chances are they're going to share that with you, and in that production schedule, you're basically going to see where your manuscript is. And in that manuscript, like, I'd like to keep track of my manuscript for the off chance that something happens. You're halfway through your manuscript and all of a sudden they've shut down.

Right.

Well, where's the manuscript? What happened? Exactly, because you paid for that service, right?

And I would say too, have really great relationships with the people who are working on your book. Know who they are. Don't be in the dark about who your editor is or who the copy editor is or who the designer is, because 9 times out of 10, unless you're working with a very big publishing company, those people are probably freelance, right? And so if, if you're a hybrid publisher or your custom publisher shuts down and you want to try to maintain that relationship with that freelancer so you can then take the project and go your merry way and, and have people working on it who, who you've already been working with, make sure that you are in contact with those people and that you know them, because as freelancers, they shouldn't be precluded from continuing to work with you.

They shouldn't be. Sometimes they are, but if, if that, uh, if that company does go out of business, then they're no longer precluded from working with you outside of that environment, which is good. Um, always be friends with your editor, your copy editor, always your project manager. Oh my gosh, yes. For those people who are in a traditional publishing model, and let's say that you're 5 years into it, you've got inventory and the book's been successful across the board, and you've got translation rights I would say every time your book sells in a different market, keep track of that. Keep track of who that is, because that other publisher pays your publisher, who may or may not be in business anymore. And now you got to figure out, where's my money? Yep, exactly. From—

it goes back to everything we've always said on this show, which is think like a publisher even if you're not.

Yes, always prioritize yourself in these, in these situations and make sure you know what's Yeah, find a good partner, a publishing partner, but always, you know, trust but verify.

Yeah, always.

Can I jump in and ask a question?

Absolutely.

I have been listening to this and I'm going, oh my God, one more thing I gotta do when I write my book. I just wanna go off in the woods, write my great American novel, and then present it, come down from the mountain, present it to the world, and sit back and collect my royalties and my acclaim. I don't want to worry about all this stuff, the what-ifs, but what if, wow, I'll bet there are a lot of small publishers these days, it's tougher than ever, that get merged or get bought out or go out of business or whatever. And all of a sudden you call up and there's nobody answering the phone and you're like, where's those 10,000 copies of books? Where's the, where's the pay? Where's the final, what do you call it? The galley or whatever that they printed from here. Where's the COVID Where's all this? What a nightmare. You've done all this stuff and then all of a sudden you gotta chase that stuff. So my question is, do you have standard templates? Is there an association that has sort of some of this language you should look for? Is there, are there attorneys you'd recommend who specialize in this? Because I'm, I'm just going to sign whatever they send me. Oh my goodness. I'm thrilled. They gave me a contract here. I have a contract. And all of a sudden it's a lousy contract or it's a one-sided contract.

You can't see me, um, if you're listening to this podcast, but I'm frantically looking for the copy that Jen sent me of the book on publishing law.

Oh, Kirsch's Handbook of Publishing Law, Jonathan Kirsch, which is an old book, but it comes in super, super handy all the time. If you really want to go rogue and go solo, then I would— I would get yourself a copy of that book. But, you know, there are, um, there are some organizations that you can go to for help, um, you know, and we can, we can list those in the show notes. I guess, of course, put all that in there because I—

this— you opened up another can of worms I never would have thought of. I, I'm, yeah, I'm writing how much they're going to pay me and how much I get for each copy, and man, then you talked about foreign rights. I never thought about foreign rights. I didn't think there were any foreign rights for my business book, but all these things you've gone through, and now right of rescission. Does this stuff come back? They're sitting on it. They're, they're not doing anything with it, or they go out of business or they whatever.

Right.

Yeah.

The one that I'm thinking about, and Jen, you're probably thinking of the same one, is the Alliance for Independent Authors. Even if you're not a self-published author, they have a really great list of resources. It's a membership. You get everything in there that's about booksellers, distribution, book fairs, literary agents. Um, they are a nonprofit, which I really, really love. They've got a really great mission and they, you know, they're, they're there to help authors. It does say independent authors, but I like to think that it's for all authors.

Well, I'll bet this stuff comes up more often than we imagine. And I would want it not just to go out of business, but they, they sit on it or they don't do it and you wanna take it somewhere else and shop it or whatever. Here they've been sitting on it. Had it for 2 years and sold 2 copies of it or whatever here, right?

And that tends to happen, you know. Not every book is a blockbuster book, um, but if you also feel like it just didn't— it wasn't the right fit, you were sold something different, things change. Things do change. Your editor can leave halfway through your publishing project for, yeah, you know, more money elsewhere, because that does happen, because people in publishing are underpaid or not paid as well.

I don't know if they're underpaid, but I'll, I won't pick up on that one here. I, cause I see the luxurious digs that you guys hang out in and I don't swim in cash, but I, what it does remind me of is the music publishing or music business and music publishing. And I had some very good, I want way, way, way long time ago, dreamed of being a rock and roll star and sang in bands and stuff. And some friends of mine got the Mythical recording contract. And had one hit out in the '80s. You'd have to go look it up. They were on MTV. Uh, I don't know if I should identify them or not here, because I'm going to say sad things about them, but they got one record deal and they didn't get any money. And they looked at the deal and it was like, well, the money's deferred till we pay the expenses of the second and the third and all this other stuff here. And so they, um, they went to put out another album and the guys that signed them with the label had left and it was a whole story. And they've got this manager who's basically got them tied up. And he said, and they're like, well, you didn't push it and you didn't do this and all this other stuff we didn't know and blah, blah, blah, blah, blah. He said, I own the rights to the next two albums, so go do them and then you're free and you can go do whatever you want.

Yeah.

They just disbanded. They had an album out on rotation on MTV. And they didn't get a nickel from it, nor did they ever complete the contract because they thought, what's the point? It was such a bad deal, it killed the band. It killed the band.

That's crazy. Yeah, and you don't want that to happen, right?

So you're thinking— I— and they were just thrilled. Some big producer comes along, some big label comes along and says, we're going to sign you. Where do I sign? You couldn't sign fast enough. And then when they looked at the, the complexities of it. They didn't probably have an attorney look at it or anything here. And it was so one-sided, but it's standard. This is what everybody does. Blah, blah, blah. And you can really get taken to the cleaners, even I'll bet on small publishers, all these things you didn't understand and what-ifs and what-if, and all of a sudden you're wondering, what if, what did I do wrong here?

I'm pretty sure we did an episode on this. Um, I'm gonna have to link that in the show notes, but we did an episode where we talked about, uh, not subsidiary rights, sorry, but, um, advances and how that works and how you get paid in terms of royalty. And it's very similar to what you described. It's an advance, which is, you know, it can vary anywhere between like $1,000, $5,000 to six figures. And you see a lot of those six-figure stuff, but I, I don't know, it's— for me, an advance is, is, is more like good faith money. It's most publishing companies will pay out royalties after they've met, after you've basically earned back your advance. The higher your advances and all these other hidden costs, the cost of testing. Exactly.

And all the accounting costs and all the other stuff that you didn't know. You know, they, they rig it so that some of these like TV shows and records, you know, they've made millions supposedly, but the money is still floating through the system. That exactly, they're finding creative deductions for all these things here.

I'm a fan of publishing companies that look at, you know, I'm not gonna, you know, Broad Book Press does this, but we try to look at, you know, the publishing world as really a partnership where it's like, we're gonna do a modest advance. We know where we're able to put the money in, but at the end of the day, it's more of that partnership where we're gonna put in our own elbow grease and some funds to do some Amazon advertising. Facebook advertising, Instagram advertising to help not just the book but also the author thanks to some really great programs that Ingram PGW is doing. But it's more of that you're putting in some, we're putting in some, and the royalties are a little bit better.

Well, first-time authors like first-time musicians can get taken to the cleaners.

Yeah.

So many times they say, "I gotta get out of this. Next time I'll do it better." Well, for many of us, maybe there is no next time. So I just had to throw that out because I see similarities to it. I wonder if there's places they can go, like you mentioned, associations or a book or whatever, to get a little well-versed on this stuff, because it's not something anybody would think about, particularly for a business book. I'm not really, you know, it's not worth fighting over. Well, yeah, if somebody takes your book and doesn't give it back to you, that would be—

Oh my God.

Yes. Yeah.

It is.

And I would say, even if you don't have a lawyer— not everybody has a lawyer— you can hire somebody for a couple hours' work to review a contract for you. You can. And so, you know, that's money well spent to give you peace of mind that what you're entering into is solid and that you're protected when things like this do happen, when publishing companies go out of business or, you know, decide to do something with your book that you don't want to have done with your book. So I would say that's an investment in yourself that is worth making.

Yeah.

Okay.

Absolutely.

Good stuff. Take us out. Good. I had to throw that in because I thought you really opened up for me, and I'm sure for people listening, a topic I never thought about.

Well, you don't want to think about it.

It's all going to be happy. They're going to take the book. They're going to give me money. They're going to promote it. I'm going to get famous. I'm going to make money off of this thing here. I never think—

we don't want to be Debbie Downers, but you know, It can happen. It's, it's business. Business sucks sometimes.

Business sucks sometimes.

All right, that's right. So have a contract so it sucks less.

Yes, that's right. All right, take us out.

All right, well, thank you so much for a great conversation. Thanks to Paul, our producer, and thanks to Emily Carpenter-Polskamp, our executive producer from Little Red Communications. And we will see you next time.

We hope that you gained some valuable insights into the world of publishing. Head over to broadbookgroup.com to learn more about us and all our services, and be sure to check out all our social media @BroadBookGroup. Until then, keep publishing!