AN AUTHOR’S HALLOWEEN NIGHTMARE: The Publisher disappears . . .
October 26, 2022
It’s been a while. You’ve tried to get in touch with your publisher with no response. And finally you discover your publisher has died! What can an author do?
It’s a scary thought. You worked for years on the manuscript. Polished it with the help of friends and family, Shopped it around to agents and publishers. You agonized over the cover and lost sleep when you found the type-o in the crisp, newly-printed final copy. Enormous effort and time has gone into creating that six by nine inch bundle of compressed paper — like mini plywood dreams you carry them forth into the future in order to connect your writing with others. So what happens when all that work just disappears? Following are five questions to help you think about the legacy of your words:
QUESTION ONE: do you possess your most current PRODUCTION FILES?
You gave your publisher a Word doc and now you have a beautiful copy of your published book — a completely different animal now that it’s been edited, designed, and printed. Do you have the final production files? What if you cannot order more copies? What if your publisher goes out of business, or worse, dies?
Some publishers don’t give authors the final production files of their book. Instead, they may hold these files hostage for payment, or they may never give the author a copy of the files at all. Authors who don’t have these final production files may discover that republishing their book is a nightmare!
If the publisher goes out of business, disappears, or dies, the author may need to start from scratch – they will need to re-create the production files, and reproduce a completely new version of the book. Even if the author has got the production files, re-publication is tricky business.
At Anamcara Press, we use Adobe InDesign to design book covers and interior files and save them to high-resolution, printer-friendly PDF production files. The cover is one high-resolution file and the interior is another high-resolution file. This is the final step in the design, editing, and review process – often after many, many hours of work and collaboration with the author. We always provide authors with copies of their final PDF files – the ones that become the book — because we partner with authors and want authors to be able to preserve the legacy they’ve worked so hard on. As a publisher, I am asking the question, “What if I die? What will happen to the author and their book?”
QUESTION TWO: does your contract end when the publisher dies?
Not necessarily. If the publisher is an imprint – a subdivision of a larger publisher – and the parent company is NOT going out of business, instead it is only the the imprint going out of business, the parent company may retain the rights of the imprint, leaving the author with a new publisher, like it or not. If the parent company decides not to keep the book in print, then It is possible they might choose to release the rights to the author, but that depends upon the contract the author has signed, and it does not guarantee the author will get copies of their production files.
In order to get out of a contract with a small publisher or with an imprint of a large publishing house, the author may need to agree to forgo royalties owed to them, or even pay the parent publisher for the privilege of moving on (unless their contract states differently.)
QUESTION THREE: doesn’t the publisher have to return your production files?
Short answer: no. Once free from any contractual obligations surrounding the book — after the book’s rights are returned to the author — the author may be forced to republish without the production files for their book. Depending upon the contract, the publisher may have no requirement to return them.
If a publisher is closing their doors due to death or bankruptcy or whatever, it is possible that their contract has a clause that allows for immediate termination of the author publisher agreement. That means they can’t sell your book anymore, however, it does nothing to get you your production files returned.
Take some proactive steps when signing a contract with a new publisher – or ask your existing publisher to make a change to ensure you have access to your production files and can protect your book’s legacy.
Read the fine print.
QUESTION FOUR: how can the author reproduce the book’s production files?
If you can’t get your production files back, what can you do? Well, forget about scanning the book – that creates an editing nightmare! Letters may transpose and introduce new, unexpected errors. Overall, it will be less time consuming, and therefore less costly, to just retype and reformat the book.
QUESTION FIVE: how does an author republish their book when the original publisher goes out of business, dies, or just because they want to?
Once the author is released from any contractual obligations with the previous publisher, if the publisher is alive and able they will remove the book from distribution channels.
When the book is republished by a new publisher, the new publisher will produce new production files with a new copyright page, book cover, and ISBN, and should have the ability to connect previously published version with the new version so that reviews from the original book are merged with the new version.
If you wish to self-publish, remember that the previous publisher likely owns the copyright to the original cover so you will need to create a new cover design and new production files with a new copyright page. Also, the ISBN (the book’s identifying number) is associated with the publisher. You’ll need to procure a new ISBN for the book before you can self publish your book.
QUESTION FIVE: what if the author dies? Can their family members get rights to their book? What about the deceased author’s royalties?
If the Author dies before all royalties due under their contract have been paid, then the publisher or publishing platform is obliged to pay those royalties to the author’s beneficiaries.
If the author is self-published, for example on Amazon’s KDP, and there is no contract, then you need to review the Terms of Service (TOS) for KDP, and for any other self-publishing platform they may have used.
“Here are Amazon KDP’s terms of service from section 10.3 Other Legal provisions:
Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other, except that (a) Amazon may assign any of its rights and obligations under this Agreement without consent and (b) you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with the sale of all or substantially all of your assets, but you must give Amazon written notice of the assignment no later than ten (10) business days following the assignment.”
Eek! What does that even mean? At least D2D (below) has a letter that can be deciphered. Both may need an attorney’s interpretation for full clarity!
“Here are Draft2Digital (D2D) terms of service from section 19, paragraph f, General Legal Provisions:
You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Draft2Digital, except that either you may assign any of your rights and obligations under this Agreement without consent in connection with the sale of all or substantially all of your assets but you must give Draft2Digital written notice of the assignment no later than ten (10) business days following the assignment. Draft2Digital may freely assign its rights or obligations under this Agreement without notice to you.”
HERE IS AN EXCERPT FROM A SAMPLE LETTER FROM D2D, Draft2Digital:
“Should you pass away, or become incapable of handling your own affairs, your account would pass on to the person you name as the executor of your account on your will.
In such a situation, you would want to direct your executor to reach out to Draft2Digit Director of Operations or the Customer Service Manager; either one can assist your executor with switching your account over to their information.
We will request both a death certificate (in the case of the original account holder passing away) and the will that shows who you have named as the executor of your account.”
SO upon an author’s death, the beneficiary must contact the self-publishing platform and ask for guidance. The beneficiary may be expected to provide a copy of the death certificate. It may be possible to keep the eBooks and books available for sale on the platform and receive royalty payments for sales. You may alternatively be able to remove the books from sale should you choose.
What happens if you do nothing? The deceased author’s books will remain on sale until the publishing service cannot pay out royalties due to bank accounts being closed. When they are unable to contact the author they will likely suspend the account.
One does have to wonder about what happens to all of those uncollected Amazon royalties piling up out there – do they turn into a rocket-ship and blast off into space?
QUESTION FIVE: How can I ensure my beneficiaries have control of my book and royalties?
- if you want your book to stay in print put it in writing and let your family know your desires.
- provide your publisher with a legal document specifying who will have control of your book, and where your royalties go should you die or be unable to act on your own behalf. Language like: “Should I become incapacitated for any reason, please assign editorial and contractual control and future royalty checks for this book to:…
- If self published, consider writing a letter of instructions, including passwords, so that your beneficiary has access to your account. They might manage the account, until they’ve made contact with the publisher or publishing platform, and the publisher/platform provides guidance.
Anamcara Press has republished several books successfully. The republished books retained their reviews and rank and the authors began receiving royalties immediately upon re-publication with a new ISBN and cover. This doesn’t mean there were no difficulties, however, for both publisher and author.
For example, I’m not certain the authors received the royalties due to them from their previous publisher. At least one publisher charged hundreds of dollars to return the publication rights to the author. And Ingram and Amazon froze up technologically and failed to interface – what’s an analogy for a giant glitch? In the end, though, the book — in it’s new cover — appeared with all it’s reviews and we were able to move forward.