January 2014
by Linda Carlson
Being able to get books ready for release without the expenses of editing, copy editing, and design—and sometimes without any investment in printing—is among the reasons that many authors and new publishers are reissuing out-of-print titles.
The number of quality titles being abandoned by larger publishers, the creative and continuing marketing that indie publishers can often develop, and the nostalgia factor are reasons that it’s worth considering how to acquire previously published material.
If you read the Independent regularly, you know that some IBPA members have created perennial bestsellers from titles that languished as “midlist” at bigger publishing companies. With the chaos in publishing today—given mergers, management changes and online retailing—new midlist titles are increasingly likely to be OOP within a few years and thus available for reissue by their authors or by relatively small presses. Specialized publishers passionate about their niches and indies marketing to the fascination with “retro” are also seeking titles that can be profitable when reissued because of authors’ reputations, digital printing, and e-publishing.
What follows is the first part of a series on getting and using rights to republish books. It looks at the process—and challenges—of acquiring rights to material that was written by someone other than yourself. That person may be an author you’re now publishing, and the material may have been previously published by a company that is still active, a company that closed long ago, or a company that merged into another one.
Later installments will focus on what publishers have learned about producing and marketing these previously issued titles, and on what authors who sought to reacquire the rights to their own work have learned.
For more help with acquiring rights, see “When Getting Rights Clearance Is Tough” by Steve Gillen, available at ibpa-online.org.
Confronting the Challenges
At Poisoned Pen Press in Scottsdale, AZ, which got its start reissuing OOP mysteries, president Robert Rosenwald has an extremely positive description for an out-of-print title: it’s “a wasting asset,” he says. If this book has a future, he points out, a publisher is doing the copyright holder, whoever that is, a favor by getting it back in print.
Anita Johnson would agree. When her publisher was closing its doors soon after the publication of her book Eating in the Light of the Moon in hardcover, she approached Gurze Books publisher Leigh Cohn at a conference about a trade paper edition.
“The conference attendees spoke glowingly about it,” recalls Cohn, who encouraged Johnston to find out if the rights were available. On the original publisher’s very last day in business, it faxed the author a reversion of rights; then she sold rights to Cohn’s Carlsbad, CA, company; Gurze has now sold 55,000 copies of the book.
Rights acquisitions are not guaranteed to all be that straightforward, other publishers warn.
Duse McLean acquired a vintage, but still in-print, title about totem poles from University of Washington Press several years ago for her Bellevue, WA–based Thistle Press. The process was easy, handled with phone calls and handshakes—but the lack of a paper trail created some hard feelings when Thistle issued the book, she recalls. “Document everything,” she recommends, “so that everyone knows what the new edition will look like, so that there are no surprises for the original rights holder.”
For the Santa Fe (NM) Writers Project’s first title, Moody Food, getting the rights from Random House required a lot of help from the author and his agent, says publisher Andrew Gifford: “They were crucial to my success.”
“Considerably easier” is how he describes the acquisition of rights to Fatal Light, originally published by Houghton Mifflin, which reassigned rights to the author. The catch? The title was OOP for seven years before rights were allowed to revert, so it was 2009 before the SFWP could reissue it. “I had been hovering around the title for years,” Gifford says.
He has hit plenty of dead ends while trying to acquire the rights to books out of print for a decade or more, he adds, noting that his “current struggle is with Imperial Governor, by George Shipway.” Gifford loved the book when he found a copy at a used bookstore. An online search led him to someone who said that the British author and his wife were both dead, and then to the agent for a 2002 reissue of the title, now also OOP. “There we hit a wall. No response for a long time, not even someone asking for some ridiculous sum, which is what I was anticipating. Until we somehow found a nephew, I wondered if the rights had gone into the ether.”
His advice to publishers: “Approach the author or the heirs directly. We almost lost Moody Food because we were in agent-land. Even if the agent or former
publisher still has their fingers in the pie, they’ll usually back down if the author asks them to. With Fatal Light, it took a well-worded letter from the author to get the former publisher to sign off.”
Mark Duncan, publisher at Askmar Publishing in Menlo Park, CA, reports challenges too. Established to focus on out-of-print titles, that company has now issued almost two dozen, most of them previously unavailable for 10 to 30 years. One prominent release is The Chinese Cookbook by Craig Claiborne and Virginia Lee, republished by Askmar in 2011.
“Locating the copyright owners has been the greatest challenge,” he says, noting that it’s often necessary to search for heirs. “For prominent authors, obituaries are easy to find”; they are more difficult to locate for minor authors.
Conduits and Contracts
Besides using the online search engines that will help you find obituaries, Rosenwald recommends starting a copyright owner search with the U.S. Copyright Office via copyright.gov/records. It’s important to know that books registered prior to 1978 may be listed only by title and author online, and even the more complete online files, which cover books registered that year and later, do not include reassignments of copyright.
When neither the Copyright Office’s files nor search engines provide answers, Duncan has paid for help. “In many cases, I’ve hired a private investigator to track down the addresses and phone numbers of descendants. I am fortunate in being able to pay between $100 and $150 for individuals in the United States. The costs for people in other countries can be much more,” he reports.
Writers’ “fan clubs” led Joy Canfield to her first acquisition of rights when she founded Image Cascade Publishing, now located in New York, in the late 1990s. Shocked by the prices for the collectible copies of her favorite 1950s and 1960s teen novels, she used the Lenora Mattingly Weber Internet Discussion Group and another book group, The Phantom Friends, to track down the owner of the copyrights to Weber’s Beany Malone books.
“The process of finding the author’s family is often quite lengthy—it has taken us as much as a year,” Canfield recalls, although online sources did lead her to Weber’s son within a couple of days, and “another Weber group member pointed us in the direction of Janet Lambert’s daughter,” Canfield says, remembering her search for Lambert’s Penny and Tippy Parrish series. “Without question, bibliophiles are a strong and fervent group!”
Today Canfield has 155 teen novel titles in print, all written and originally published between the 1930s and 1970s by women who are, with one exception, now dead.
Besides finding descendants, Duncan explains, a publisher has to determine which descendants are copyright owners. And she notes that she has spent five or six years trying to find the family of Alice Ross Colver, who started writing in the 1920s. “Dodd Mead, now defunct, was her publisher. All I have now are a few letters sent, dangling with no responses.”
What if you can’t find heirs? That’s the question Gifford raised as he was pursuing the rights to a George Shipway title: “How best to handle this if no one seems to have rights?”
Advice from Steve Gillen, who is an attorney, is available online, as noted above, and Rosenwald offered comments after carefully noting that he is not an attorney and that his comments are not legal counsel. “Unless the publisher has reason to believe that a title is going to be a huge commercial success, there is little to fear about republishing a book without permission”—that is, Rosenwald emphasizes, “if you can document that you made an effort to track down the copyright holder and if you are escrowing reasonable royalties to pay the copyright holders in case they resurface. I suspect many lawyers might disagree with me on this, but I doubt that it would end up being a problem.”
What can be problematic, Duncan has found, is getting a contract signed. “Some people are senile; some are skeptical; there are disputes among family members; or there are people who want outside lawyers to review or modify the agreement. Most of the titles that I acquired had contracts signed quickly, but in one case, it took a year, since there were two deceased authors, and the estate of one was represented by a Hong Kong lawyer.”
Given the effort that contract negotiations may involve, Duncan recommends a five-year contract with an automatic one-year extension. “The cost of renegotiating a contract tends to greatly exceed the potential future revenue of a long-tail reference book,” he declares.
Linda Carlson writes for the Independent from Seattle, where she has reacquired the rights to her Publicity and Promotion Handbook: A Complete Guide for Small Business.
Marketing Without an Author
You may be like Andrew Gifford, who falls in love with books he finds in used bookstores, and spends years tracking down heirs so that his Santa Fe Writers Project can republish titles. But how can you promote a book when the author is dead or too old to provide any marketing help?
Gifford has developed promotional strategies that don’t depend on author publicity. “SFWP has built up quite the machine in the last 13 years,” he says. “We have thousands of folks we can market to directly, thanks to our annual Literary Awards Program, lots of followers online, and full market distribution through the Independent Publishers Group” (ipgbook.com).
Gifford is committed to keeping certain titles in print. “Much of my interest is more in preservation than in book sales,” the publisher says about a George Shipway title he’s been pursuing for years. “Shipway should be on the shelves for generations to come.”
At Image Cascade, Joy Canfield likes to say that the authors did all the marketing she needs by creating followings when they were active. “We have had an overwhelming response from women who read the books in their original time or a few years after publication,” she reports. This has undoubtedly been fostered by the number of “fan clubs” for such long-running series as the Sue Barton nurse books, first published in the 1930s.
Canfield says she also hears from parents who want quality literature that is not “problem fiction,” stories that are both entertaining and uplifting.
She has had some promotional help from her sole surviving author and from heirs, although many of her authors’ descendants are elderly themselves. Sally Watson, the author of such historical fiction as Highland Rebel, and now almost 90, appeared in Santa Rosa, CA, several years ago at a tea that attracted readers from as far away as Boston and New York. “It was one of the highlights of our work,” says Canfield. “We have great joy in getting to know the authors’ families, meeting the wonderful readers, and in having a small part in sharing these terrific works with new and veteran readers.”
Another helpful family member has been Jeanne Ann Vanderhoef, Janet Lambert’s daughter. “She’s 95 and limits her book signings. But because she and her family members appear as characters in the Tippy Parrish series, she will sign books as both Lambert’s daughter and as a character.”
