Writer: "my publisher said I could only get the rights to my out-of-print book back if I bought their leftover copies from them"

Writer Doranna Durgin sez, "For eighteen months, publisher Fitzhenry & Whiteside has refused to honor the contract reversion clause for one of their fantasy titles; they have persistently demurred, ignored, and rebuffed attempts to discuss the situation, whether approached via agent, SFWA GriefCom, or directly. At this point, silence is their friend--but not in the interests of anyone else, including writers who are actively submitting YA works. The linked post presents a summary based on saved emails, the contract clause in question, and screenshot evidence."

Some context for non-writers out there: while creators in other fields (music, say) are typically required to assign their copyrights to their publishers/labels/studios, fiction writers have a much less oppressive arrangement with our publishers. We typically license our works to our publishers, and the publishers only get to keep those licensed rights for as long as the book is "in print." The definition of "in print" has evolved over the years, but typically it means, "the publisher has copies that it supplies to bookstores through its fulfillment system." The exact details of "in print" are spelled out in each book's contract.

According to her version of the story (a version corroborated by independent sources, like the Science Fiction Writers of America's Grievance Committee) Durgin's publisher is most certainly not keeping her book in print per the terms of their contract. The fact that they've demanded that Durgin buy back their leftover copies of book as a condition of holding up their end of the contract is without precedent -- indeed, it's a breathtaking violation of publishing norms, the sort of thing you're more likely to encounter from ripoff vanity publishers and not a respected house like Fitz and Witz. Writer Beware indeed.

After another nudge—which included the reminder that the publisher could continue to sell warehoused copies in their usual fashion, as well as a reminder of the boilerplate changes–we were finally told: “This book is in stock, on sale on our website, it continues to sell albeit in lesser quantities. [my note: yes, a handful of copies a year] We have some 1,600 in stock with no reason to revert rights.”

How about because it’s a contractual obligation?

...Early the next day, I heard from the GriefCom chair that he had received a phone call, and that the unidentified caller took him to task in no uncertain terms–claiming harassment, declaring there would be no reversion on the title, and warning that she would “report” us to [prominent Canadian SF writer #1] and [prominent Canadian SF writer #2]—all before hanging up on him.


  1. This book is in stock, on sale on our website, it continues to sell albeit in lesser quantities. 
    May I say surprisingly, with the cover and all.

  2. In my last book contract, I went about three rounds with my publisher because I didn’t like the terms about reversion of rights. In fact, the first draft that they sent me said nothing about it, and they claimed that they didn’t even have language for that in their contracts (this is a huge, old publisher, btw) and “Oh you know we’ll do right by you if you ever want it.” Now, I have a really good relationship both with my editor and the acquisitions/managing editor, but I hate it when people try to push off a business concern via personal trust. I was like “Folks, this is a business and the next person who holds your job or owns this company might have a different viewpoint. I want it in writing.” I mean, that’s the whole point of a contract.

    I sent them some language, and behold! In only one day they had “found” their language for it.

    Every time I finish a book, I tell myself that I’m not going to write another one just because of stuff like this. I hate it. But then I get my royalty checks, and they propose another title, and I fall back into it…

  3. I’ve been reading sci-fi since I was like 9, and I’ve never heard of this publisher.  Are they really an established company, and not a vanity press?

    1. Yes. F&W are a very established mainstream Canadian publisher. I don’t know how much they distribute out of Canada, but they’re a (heretofore) respectable and well-known Canadian press.

  4. Heretofore respectable, meaning that one author having complaints may not be a valid reason to attack them, perhaps?
    How is direct-to-consumer, by the way, not a “usual” sales channel?

    1. It’s not a usual sales-channel because it’s not the usual sales channel for books.

      Trade books are called “trade books” because they are distributed to the trade, that is, bookstores. This has been the “usual” saleschannel for a century and more.

      Indeed, direct-to-reader retail isn’t usual — it’s radical. It was practically unheard of until a few years ago, and even today it’s not widely practised in the industry. I don’t have anything against direct retail fulfilment by publishers, but if there was one word that most industry watchers would use to describe this practice, it would be “experimental,” not “usual.”

      For a publisher to claim that a book is available through the “usual” channels when it can’t be had through jobbers like Ingram or B&T and can’t be had through the publisher’s wholesale salesforce or its customary distributor is risible.

      That’s like a soft-drink manufacturer claiming its product is available through the “usual” channels when no store or restaurant in the world carries it (or can order it for stockage), when it is not listed in its wholesale catalogue, and when the only way to get it is to ring up the manufacturer and ask to have a bottle sent to your house.

      And you’re right, a single author’s unsubstantiated claim against a well-respected publisher should be treated as suspect.

      But this isn’t a single author’s unsubstantiated claim. It is a claim that has been investigated in depth by the equally respectable — I’ll go so far as to say unimpeachable — SFWA grievance committee, who corroborate the story.

      Publishing is in flux (it usually is) and one way that publishers respond is by pushing at the limits of the norms of the business. When they push against writers, writers are often reluctant to go public with it, lest they sour their career chances. But if the well-corroborated story presented here is true, it indicates that in at least one instance, F&W is behaving in a way that deserves public shaming.

      What’s more, it may be that this is a more widespread practice at F&W but that each author believes s/he is the only one who’s been subjected to it, so publishing this writer’s (again, well-corroborated) story is the best way to get others who might have the same story to go public as well.

      1. “It’s not a usual sales-channel because it’s not the usual sales channel for books. ”

        Damn it, Cory, usually I like the things you say, but this time you sound like the RIAA, MPAA, and a couple of other publishing dinosaurs all rolled into one. The times, they are a changin’, pal, and a century of “how it’s always been done” don’t mean squat. You don’t even adhere to that model yourself–I just looked and your books are available on Kindle, Nook, and I’ve gotten a couple directly from you, on the web. You’ve got a lot of gall stumping for the old way of doing things defining the way things should be!

        Which is not to say that I disagree with the fact that the contract appears not to have been followed.

        1. Cory’s not saying that “how it’s always been done” is the “way things should be”. He’s saying that this what both parties understood “regular trade channels” to mean when they agreed to the contract. Keep in mind, the publisher’s unwillingness to revert the rights prevent her from self-publishing the book as an ebook.

      2. I think Rachel Bokhout has a nice summation below of the actual situation. This is an independent Canadian book publisher (full disclosure, I know them and they are a member of the association that I work for), who is still selling copies of a backlist title. They keep it in catalogues, sell it online (their site as well as getting orders from stores) and have it listed on retail sites.
        “Trade books are called “trade books” because they are distributed to the trade, that is, bookstores.” This though? The percentage of sales that now come from online has made bookstore availability a secondary outlet to bookstores, especially for backlist.
        I agree though, if they did tell the author that they could have the backlist if they bought everything in the warehouse, that’s out of line.

    2. heretofore respectable: meaning “before this i never had documented evidence of douchery from them”

      Complaints are one thing, and a series of connected documented events is something else, and pre-emptively choosing the side of the powerful over the less powerful is something else entirely. better questions please.

  5. All companies are using the excuse of a down economy to screw whomever they please in the name of profits.  Or more so than usual, I should say.  My own company cut wages by 4% because we are “losing money.”  We are NOT losing money.  Our numbers are higher than they have ever been, it’s just that we failed to hit 20% over last year, plus 10% for the owners.  Three years ago, they would not have done this with the numbers where they are, because a profit was made and companies were not yet in the habit of following the leader by instituting “austerity measures” because the “economy is down.”  This is a disturbing trend of exploitation at the worker’s expense and it is no surprise that this publishing company has sold their integrity for a pittance.  My own company budgeted for the $300,000 of legal notice publishing from last year, when residential foreclosures were at a high.  They knew those notices would not be there the next year, but they budgeted for it anyway so they would have an excuse to do something exactly like this to make their pockets that much fatter.  The fact that we are a private company with no debt only makes this harder to swallow.  Our wages are already way below industry standard because they take full advantage of Idaho’s “Right to Work” law. Unethical business practices are still criminal, if not strictly illegal. 

  6. As eBooks continue to grow in popularity, reversion rights are increasingly going to be a big deal. It used to be that no one would want to republish an old book. Now, you can put your back catalog online and expect it to sale. And big publishers are incapable of doing that.

  7. Perhaps ironically, the book was originally published through Baen, who pioneered direct-to-consumer. (And I own all the books in the series except that one from them…by the time I wanted to read it again, it was too late.)

  8. Perhaps I am confused about this, or the Author is specifically broke, but shouldn’t she just get a lawyer and sue them and be done with it?
    if it’s money, well set up a fundraising site (or kickstarter) and ask for some funds from the writers union people.
    If this is a CLEAR contract breach then there is a CLEAR outcome, although of course because they are a big publisher they have the pockets to drag this on for a very long time.
    But the flip side is using the power of all the writers unions etc, to boycott them from all angles, be it via customers, bookstores & writers.
    refuse to buy, refuse to carry, and all writers ask for your publishing rights back at once.
    Again all of this requires time and energy which is probably a distraction from writing, but this is where writers unions/collaboratives etc, should take up the fight.

    PUNISH them stiff necked fools!

  9. Lawyers cost lots of money. It’s a sort of nuclear option, because, just as with mutually-assured destruction, you can easily lose by winning, spending much more money recovering your rights than your rights will actually make you once you have them back. 

    If it’s possible to shame the publisher into doing the right thing without lawyering up, it’ll save a lot of money in the long run. That’s what they’re trying now. I expect if that doesn’t work, they’ll eventually call in the lawyers.

  10. I’m a novelist. It would help me if you would print the actual reversion clause from her contract so I could see the terms here. Is it based on time or sales or in-print status or what?

    I had a publication attorney vet my contract, and you can bet my rights came home to me just fine.

    1. The actual reversion clause is printed in the original blog post that was linked at the bottom of the BoingBoing post. 

      “16.(a) If the Publisher fails to keep the Work in print *through regular trade channels* and for sale and written demand from the Author declines or neglects to reprint it within six (6) months thereafter and to offer it for sale, or after two (2) years from the date of the first publication the Publisher wishes to discontinue publication of the Work and gives three (3) months’ notice to this effect to the Author in writing.”

      The part in asterisks is what the author and her agent specifically added to make sure their rights were secure. The rest of it is the boilerplate from the contract.

      1. Ah. Yes, I would stick that into the body of the post.

        This is why I hired a publication attorney. Clause (a) – well, it is in print and available, as they state. “Regular trade channels” should be defined, but likely includes orders from bookstores, which would be filled, so no problem for them there. No need to reprint if they have boxes of them. Clause (b) – this is the real problem child because the decision is unilaterally given to the publisher. 

        Where is the right of the author to discontinue? Where are the specific numbers that must sell to justify active status? Where is the automatic reversion after X years? This clause gives all the power to the publisher and allows them to hold on to it on their terms. 

        If anybody wants a publication attorney, I recommend the firm of Rohde Victoroff in Los Angeles.

  11. “Indeed, direct-to-reader retail isn’t usual — it’s radical. It was practically unheard of until a few years ago”

    I find that odd, I have hundreds of paperbacks spanning the decades and up until fairly recently, I’d say the majority of them has an ad listing some or many books by that publisher and inviting the reader to order directly often with a coupon to fill out (assuming you wan to rip up your book).

    Now I am not saying the publisher isn’t handing the author a load of cobblers but I do find it odd to see people, especially writers claiming that direct retail sales by the publisher is something new and evil.,

  12. All legal issues aside until we unmask the mysterious identity of “[prominent Canadian SF writer #2]”!

    I haven’t felt this titillated since “Senate candidate #5” was revealed.

  13. ALways, always, always – read, re-read & get an indepedant person(s) to read your contract BEFORE signing it. If any part of the contract is questionable – put it in writing make several copies & ask the publisher to reply in writing. Keep ALL documentation.
    More advice? http://www.dreamwritepublsihing.ca

  14. “through regular trade channels” is NOT “through regular sales channels”.  I don’t see any way to interpret “through regular trade channels” as direct to consumer.  Is “and written demand from the Author declines or neglects” a typo for “and upon written demand from the Author declines or neglects”?

  15. “Regular trade channels” and “out of print” are both well-understood terms within the industry and aren’t contractually appalling. This actually seems like a reasonable contract that essentially says that the publisher agrees to market the book through stores and if they can’t or choose not to then the author gets her rights back. The following clause is a protection for the publisher in case the author climbs a clock tower with a rifle and needs to sever ties quickly.

    I have no idea how the publisher thinks this is a reasonable way to act toward an author. Have they recently been bought by a soap manufacturer or something? They’re a well-respected publishing house– are they so good that they’ve never had a misfire and let a title go out of print before? Are Canadian authors usually so nice that they’re willing to let things slide rather than make a fuss?

  16. Since the publisher is violating the contract and the author is right, what is to stop the author from doing what she wants with her book?

  17. This situation is a mess, but Doranna is calling something by what it’s not. I’m a Canadian bookseller, and after looking at her post and at the databases, it’s obvious that the actual problem is that Fitz is doing a crap job of selling her book outside of Canada.

    Inside, they’re keeping it on their backlist and in the only warehouse where any Canadian bookstore would look to buy it from anyway.

    If they had a stronger sales presence out of the country, US bookstores would also be ordering “Dun Lady’s Jess” from them. But Fitz doesn’t, so it’s not moving internationally. (Fitz does sell other books to the States, out of their warehouses in Canada.) This doesn’t mean “out of print” – it means “hard to get”.

    (As another example of the same thing, many of Gordon Korman’s books are printed by Scholastic Canada. Most are in print, but since they have to be ordered from Scholastic Canada, many US booksellers won’t. This doesn’t mean that his books are out of print, either.)

    I think it’s probably going to be difficult for Doranna & Fitz to re-establish lines of communication, but I see an obvious solution — Fitz just has to arrange for Ingram (the big US wholesaler) and Gardners (the big UK wholesaler) to sell it via their POD tech. Then it would be cross-listed at all three warehouses. (Ingram carries other Fitz titles.)

    This, of course, doesn’t mean that it will sell more copies. Most books sell best in the first year of their life, and “Dun Lady’s Jess” is now 16 years old. However, it does mean that when Doranna puts out a new book, it will be easier for new readers to find her old ones.

    Next time, I suggest that her agent does a better job of pinning down specifics in contract negotiation. “Regular trade channels” is an accurate description of what Fitz is doing — but for this book they’re using a channel about as wide, metaphorically, as a eavestrough.

    On the bright side, this article made me curious about the book, and I’m going to get some for my store.

  18. “The times, they are a changin’, pal, and a century of “how it’s always
    been done” don’t mean squat. You don’t even adhere to that model
    yourself–I just looked and your books are available on Kindle, Nook,
    and I’ve gotten a couple directly from you, on the web.”

    Kindle and Nook releases are not direct publisher to consumer sales. Amazon and Barnes & Noble play middle man just as they would for a paper book. Cory selling copies of his books on his website is in no way the same as a book’s publisher selling directly to consumers.

    This contract is clearly set up to recognize an established way that business is conducted by the industry, and direct to consumer sales is not an established practice. That is not to say that it won’t one day become an established practice, but it’s not now.  This isn’t a call for everything to be the way it’s always been. It’s a call for a publisher to accept that the way they are doing things is not yet established business practice, and if they want to start making it an established business practice the wording in their contracts needs to change to include the non-standard things they want to do as valid methods of keeping the book in-print for these purposes.

    1. A bunch of Hanky Panky, I feel sorry for the writer, her body of work has been boarded by Canadian/Ethiopian pirates…and “the right to get her baby out of daycare”  held for ransom. Yes, ransom. 

      Is the company going to request the most recent sales price on Amazon @ $139.72 totaling a Quarter Million Dollars to by her “baby” back?


      The only thing Fitzhenry & Whiteside have going for them is their name, sounds like a candy store in a Harry Potter novel.

      Ripoff Report Re: Internationalbooks AKA ProQuo Amazon sellers.


  19. If I was the publisher, I’d claim the author is on strike. Then Harper would bring in legislation to force them to work for the publisher under whatever terms the publisher feels like.

  20. If the printed book is only selling a handful of copies a year, and the publisher is warehousing 1,600 copies, aren’t they more or less shooting themselves in the foot?  There’s a cost to warehouse physical things, and if the publisher gets their way, they could be warehousing these for decades. It doesn’t make much economic sense.

    1. It’s all subjective now, per other BB posts, digital versions may be considered “in stock”. So maybe there’s a storage device that has 1,600 copies in digital form, not a lot of memory actually.

      The author should demand to “see” the actual stock, not take their word for it.

  21. Wow.  Just….wow.

    And the unidentified phone call floors me.  Why would Candian Writers #1 and #2 even CARE?  Because I know what my reaction would be to a call out of the blue from someone complaining that “the SFFWA Griefcom Committee is harassing me” and it wouldn’t be printable, but would involve the suggestion that the caller go engage in Kama Sutra poses with several farm animals, a cactus and a Roto Rooter.

  22. F&W is distributed by Ingram in the US.
    It doesn’t sound like many people have read the author’s timeline: http://www.doranna.net/wordplay/index.php/fitzhenry-whiteside-contract-dispute-timeline/ I'd like to highlight a couple points as written there.

    “We also point out that the latest statement we were mailed reflects more returns than sales, which indicated to us that the books are not available (or at least not selling) through regular trade outlets.”

    So the books WERE on shelves but DIDN’T sell, as is common in the industry. I think the misinformation in this case is absolutely nuts.

    To any reasonable person, according to what has been presented here by the author, the publisher did not demand or harass her into buying stock, but presented it as an option if she really wanted the book to qualify as out of print.”“We have some 1,600 in stock and will not revert rights at this time. However, if the author is willing to purchase the remaining stock at cost we’d declare it out of print and revert the rights immediately.”

    If the major issue is that orders are taking five weeks to arrive, then that should have been addressed head on because it IS a big problem. If the book is being returned from the stores because of low sales, that’s in no way harassment or breach of contract. 

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