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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Publishing: It's more than just printing

Every now and then, it’s necessary to push the reset button. 

My first full-length collection came out last year, and it didn’t happen by accident. I envisioned it and I planned for it; I sent it to a press I believed in, Sundress Publications, and I’ve been so happy with my relationship with them, and with the exposure my little book has received. I would change nothing about the Sundress experience, and I highly recommend the press to any writer.

This year was to have been the year that my second collection would be released by a second press, but that’s a different kind of story. I would have had my second book in my hands right about now, had I stuck with that contract—but instead I pulled it, and I remain a poet with one full-length collection.

There are a lot of reasons to pull a book, but for me, it came down to my own readiness to do it justice, and to my new press’s ability to meet my demands. 

My second book was going to be released as one of twenty-six titles coming out from my press in a year. That press was basically a one-person show, past the manuscript selection stage, and while the publisher was unbelievably capable when it came to producing attractive books, the policy of the press was not to edit its chosen manuscripts; rather, that was something writers could pursue on their own.

I found that I wanted something more than a beautiful book; I wanted my poems to sing. With my first book, I enjoyed an extended conversation with two different editors, and the result was a manuscript that was greatly changed over the course of several months of feedback. I still love the results. 

Notably, the things I felt unsure about after some long consideration were very clearly specified in the contract I signed with the second press. This is another key expectation—transparency and openness about the process—and the press absolutely met that requirement. But writers have the responsibility to read contracts carefully (I wish I had done so), and they should remember that the initial contract they receive is just the opening of a negotiation about their book. 

Just because poetry book sales are small, that doesn’t mean that the writer needs to accept every aspect of a contract. That’s not how contacts work. The difficulty of having a manuscript accepted can overwhelm us, I know—by the time a contract arrives, we may feel ready to go along with anything to bring the book into the world. But we should probably slow things down and think them over at this point. It’s a good idea to take at least a week to think things through, and also to run the contract by trusted advisers.

I have a few thoughts about choosing a publisher—and I’m speaking generally here, rather that specifically about my would-be press, which I continue to love and support. That publisher does the near-holy work of putting poetry and fiction out into the world and of amplifying underrepresented voices. I am in awe of the tremendous effort that press puts out, and, in fact, of the work that all presses do. I feel we owe them a great debt.

But writers are also owed a debt, and a commitment to publish a book should include a promise to do much more than just that.

Writers who go the small-press route—and that’s most poets and writers of short fiction—should be careful that their publisher is going to do more than put a collection in print. The fact is, printing isn’t publishing. Printing is just reproducing. These days digital printing is literally the same as photocopying.

What should a publisher do with an accepted book? Here are my expectations.

• Manuscript selection should be efficient and careful, and a response is absolutely called for every time, even if the manuscript is rejected.

• Acceptance rates should be a tiny fraction of the number of submissions. A whole bunch of good books come out every year; thus, the bar for adding a title to the marketplace should be a high one. I’d rather see a press choose a handful of excellent manuscripts than a bunch of good ones.

• The real work begins after acceptance. Presses should commit to an intensive editing process that is more than just copyediting. Careful editorial work is the value that a press adds to a collection.

• Months before production, promotion must begin, with collection of blurbs and with advance review copies distributed to major reviewing outlets. Promotion must include a plan for attaining media coverage. At the same time, a press needs to make sure that the people who hear about a release can purchase it—online or in the author’s local bookstore.

• Books should be produced on an announced schedule, and production targets should be faithfully met.

• A release event is needed. For a small press, the work of putting together a release party or signing may well fall to the author, but the author should get plenty of support from the publisher.

• Author copies should be very affordable, and authors should not be discouraged from keeping books on hand or from selling them personally.

• The author should work with the press to set up readings wherever possible. The job of the press, then, is to make sure that books are provided for signings.

• After a book’s release, authors should be provided with sales numbers and, if the publishing agreement provides for them, with on-time payment of royalties.

• The book should be kept in print for the life of the press. If the press decides to fold, writers should be notified in advance so that they can obtain as many copies as they wish while they are still available.

Almost every expectation I outline here is easy-peasy for a large publishing house, and a few, like keeping a title in print, are even easier for a small press. Not one of these expectations is unreasonable, and I believe each is reasonable and should be honored.

Small presses have no business putting out books if they aren’t prepared to promote them and keep them available to the reading public. That’s my goal for my own second collection, and it’s also my hope for all poets and writers.

Publishing a book is about connecting with readers, and that is no small part of the creative process. Work really isn’t finished if it isn’t received, and so a writer’s goal should be to reach as many readers as possible. Here’s hoping my second book finds its own welcoming place in readers’ hands and on their shelves.

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