Authors Guild Stands Firm on Simon and Schuster Allegations

Posted on May 25, 2007

The Authors Guild was unimpressed by Simon and Schuster's defense of its new standard author contract. It issued a new alert to members which rebuts Simon and Schuster's justification of its attempt to ensure that an author's rights never revert to him. Simon and Schuster says that the dispute is over print on demand, which it certainly is not. It's about using technology to be able to say that a book never goes out of print, therefore authors can never get their rights back.

From the Authors Guild's latest statement:

Simon & Schuster is irked that we went public with our information about their unannounced new contract language. They've sent a release (you can read it below) accusing us of "perpetrat[ing] serious misinformation."
That's a heavy charge, so we went back and double-checked. We stand by every word of our statement.
Simon & Schuster's release pretends that the argument concerns "print on demand." That isn't the issue. We like print on demand: we encourage publishers to sell books in every permissible way. You wouldn't know it from reading its release, but Simon & Schuster already has the rights - as they have for years in their standard contract - to take advantage of print on demand and e-book technologies.
The issue is what happens when a book goes out of print, when the publisher is no longer selling it in meaningful numbers. Traditionally, rights then revert at the request of the author, who often is able to give the book a new life elsewhere. Simon & Schuster is trying to change the rules of the industry so that they never have to admit that a book is out of print.

The Authors Guild says it meant what is said in its press release and member alert. The Guild also reiterated the following four points:

1. Simon & Schuster's new contract would indeed allow it to retain exclusive rights to a book even if it were no longer in print. Simon & Schuster's contract says, "The Work shall not be deemed out of print as long as it is available in any U.S. trade edition, including electronic editions." Having a book available for sale in some database - without the obligation to sell a single copy - is not keeping a book "in print" as common sense and the industry have defined that term.
2. Simon & Schuster would, under its new contract, be empowered to exclusively control your rights even if your books aren't available for sale through traditional bookstores. E-book availability (read any good e-books lately?) would be enough to fulfill Simon & Schuster's contractual commitments under its interpretation of "in print." Roy Blount is plainly right, this contract would allow Simon & Schuster to squirrel away rights.
3. Simon & Schuster's press release avowals about its promotional efforts as it pursues "incremental income" for backlist titles are not legally binding. Simon & Schuster goes on at some length about efforts to market backlist titles including "regularly review[ing] inventory opportunities with all our accounts" and engaging in the "distribution of online assets (cover, bios, synopses, chapters) and data feeds about basic information" on backlist titles to retailers. Whatever the merit of these efforts, Simon & Schuster carefully avoids committing to them on behalf of authors with books relegated to the backlist.
4. Simon & Schuster's efforts to alter the true core deal of a trade book contract - that a publisher controls the right to sell an author's book only so long as the publisher effectively exploits that right - demanded exposure. Agents reported to us that Simon & Schuster had slipped the change into its contracts without alerting agents to the alteration, which was quite subtle and easily missed. Agents also reported that when they discovered the change and questioned the publisher about it, Simon & Schuster played hardball, saying the clause was non-negotiable and wouldn't be discussed. In its release, Simon & Schuster seems miffed that we didn't discuss their new contractual language with them before exposing it to sunlight. Engaging in discussions with a conglomerate playing hardball while authors may have been unwittingly signing rights away would, in our view, have been irresponsible.

Publisher's Weekly reports that other major publishers have said that they are not changing their contracts to be more like Simon and Schuster's, which is a good thing. The Authors Guild is doing what it's supposed to do: standing firm on an issue that could really hurt authors.