When publishers close: Some ideas for protecting writers' rights

It seems to be happening more and more: A literary press opens, puts out a few good books, gets some buzz, grows … and then one day, with no warning, it disappears.

Recently, several small presses have dissolved. I had close connections to a couple of them. I was on the staff of one, ELJ Publications, and left a few months before it was shuttered. Another press, Hermeneutic Chaos, published my chapbook—a beautiful thing, lovingly designed—but then it seemingly closed down shop without a word.

Several other small presses have also closed recently—some so recently that the word is not yet out. What happens next is a typical set of scenarios, and a sad one.

Writer A is in production, and every day is spent waiting and watching for a box of hot-off-the-press copies that are never going to show.

Writer B’s book just came out—hooray! But when B tries to order a bunch for an upcoming reading, it’s no longer available, and in fact all of the press’s titles have disappeared.

Writer C has been reading and touring for a year now, and sales are brisk. Suddenly, though, the book is out of print—vaporized in its prime, as if it had never happened at all.

I used to think presses and journals closed because dilettante publishers misunderstood the scope of their job—maybe they didn’t know how hard running a press would be, or how much it would cost. I guess if I’m being honest, I still think that’s the chief reason publishing operations fold, but the publishers I know who went through a closure invested a lot of themselves into the often-thankless work of publishing, and closing down their operations broke their hearts.

The market is not easy for small-press publishers. It seems like every year there are more and more publishing houses releasing more and more titles. (It’s hard to tell exactly how many, since the count is pretty wiggly—they don’t all have Library of Congress numbers, they’re not all paper, and some of what they publish are quasi-books, chapbooks/small books, or hybridized publications.) That’s a lot of competition at every level—for quality manuscripts, for publicity/reviews, for readers and market share, for funding. 

It’s a field, too, where unanticipated costs can mount. Producing a physical copy of a book should include a line editor, a copyeditor, a designer, a proofreader, a publicist, and a distributor, if the job is to be done right—and most of these professionals will also be needed for electronic publication to be handled properly. Every step in the process costs money, and small presses very seldom recoup all of their costs through sales.

It has become clear to me that if a writer agrees to sign on with a small press publisher, it is urgently important to have a contract that anticipates possible closure. This is a good idea with any publisher, but it’s vital in an environment where new publishing houses pop up and disappear with such alarming frequency.

I’m no lawyer. My experience working with writers who have orphaned manuscripts has suggested a few necessary considerations, though, and I’d like to enumerate those here. These are some things to think about before your press closes—and let’s hope it never does:

• Who has rights to the manuscript? A contract should specify in writing that rights to the work return to the author upon closure of a press. Rights typically do revert to the author in this sort of instance, but contract language can guarantee this, while also indicating when the rights revert back to the author.
• Who owns the cover? The design of the book is the value added to the manuscript by a publisher—but when a publisher goes out of business, a book may be prominent enough that it is recognizable by its cover. It would be a wise move for a writer to negotiate a way to acquire the rights for the design, including the cover, in the contract.
• May the writer retain copies of the digital files? I would suggest negotiating for a copy of the digital files of the cover and the interior. It would be a shame for a writer to maintain rights to the design without being able to replicate it.
• What happens with the list? If a small press closes, everything it ever published is effectively dead, unless the publisher has established a plan for its titles. When a publisher I was involved with closed, several good literary citizen-presses stepped up to offer to carry the list and handle fulfillment of orders from it. The original publisher declined this offer, effectively orphaning all of the titles. Writers worked hard to find presses that would handle reprints, and many were successful. For others, their book is just a memory now.
• What happens when a publisher goes AWOL? I think it is a very good idea for a writer to put into writing an opt-out trigger. If the publisher declines to reply to a prearranged form of correspondence—say, a registered letter or a set number of e-mails to an agreed-upon address—all rights could revert to the writer. Often, these publishers feel shame when they close their doors, and as a result, they simply disappear, never to be heard from again. It’s very hard to place a manuscript with a new publisher if it’s unclear that rights have reverted back.

It’s hard to fathom when the offer of publication is extended, but there may be a day when everything falls apart. It happened to me, and I’ve seen it happen to many writers I admire. It looks to me as though a few items added to a contract, and a few questions about plans to go into effect upon dissolution, can prevent a lot of heartache for writer and publisher alike.

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