Submission Protocol: Failure to Launch

There are a lot of valid reasons to withdraw a submission, and I’ve covered most of them on this blog. Generally, a submission is withdrawn because the publisher fails to respond in a timely manner or at all or, more commonly, the submission is accepted elsewhere in the process of a sim-sub. You can have a look at my thoughts on those withdrawal situations like those here and here. But, is there ever a time an author might consider pulling a story after it’s been accepted? Unfortunately, there is. Let’s talk about that.

The Rights Reversion Clause

When a publisher accepts a story, they have you sign a contract, and, most of the time, they’ll give you a publication date for your work. That date might be tentative, but in my experience, most publishers get in the ballpark of when they say they’re going to publish. But what if that date comes and goes, and the story is not published? Well, then everything hinges on one important clause in the contract called a rights reversion clause or sometimes a drop dead date.

Here’s what that clause might look like (from the SFWA model contract)

If the Publisher fails to publish the Work by [the date by which first publication must be made], all rights granted hereunder shall immediately revert to the Author. In such event, the Author shall retain any payments made under this Agreement prior to such reversion.

The SFWA model contract suggests a maximum period of one year before rights revert to the author. So, if a publisher has this clause in their contract, and they fail to publish the story within the stated time, the rights immediately return to you, and you can start submitting the story elsewhere. But should you? Let me answer this by saying only once in all my publications has a publisher even gotten close to activating this clause. When they did, I reached out with a status query and got an immediate update and a new publication date. Since they’d already paid me, and they were prompt and professional with the reply, I was happy to wait. I’ve been a magazine editor, and I know shit happens. Stories can fall through the cracks, things get shuffled around, and you’re just trying to do your best to keep the trains running on time. So, if a publisher communicates with me openly and honestly, as the one above did, I’m not gonna pull the story. Your mileage may vary, but I’d give the editor a chance to respond, give me a new date, and proceed from there. If they don’t respond or keep stringing you along, well, then, it might be time to move on.

If you do decide to pull a story in this situation, I think you should do the professional thing and notify the publisher that the rights reversion clause has been activated and you’re moving on. How a publisher might respond to this is anyone’s guess, but, at this point, you’ve been patient, and it’s not fair for a publisher to lock up your story for a year or more without any kind of publication date in sight.

No Rights Reversion Clause

Let me start all this by saying that I am not an attorney, and what follows is simply my layman’s interpretations of publisher contract language based on personal experience. So, this is not legal advice or anything of the sort.

So, what happens if all the things mentioned above come to pass but the publisher does NOT have a rights reversion clause in their contract? Well, then things get more complicated. First, I don’t think it’s unreasonable to ask a publisher to amend a contract and add a rights reversion clause before you sign it. Some might do it, some might not, but at least you can then make the determination to sign the contract or not and avoid any issues with an accepted story languishing in publication limbo. But let’s say you signed a contract that doesn’t include a rights reversion clause and the months start to pass, no publication date is forthcoming, or the one you were originally given comes and goes without publication. What do you do then? As always, I believe communication is key. Send the publisher a status query asking for a new publication date. If you get one, then I’d say give the publisher a chance to make good. If you get crickets or a nebulous response, then you’re kind of in a tough spot.

As far as I understand it, without the rights reversion clause, there isn’t a simple way for you to pull your story if a publisher fails to publish it in a timely manner. The best you can do is contact the publisher and request that they let you out of the contract. That said and again, as I understand it, the publisher is under no obligation to release the story back to you. If you go ahead and publish it elsewhere anyway, you’re might be in breach of contract. Anyone with a background in contract law, please correct me in the comments if I’m off-base here.

Failure to Publish Best Practices

1. Before you sign a contract, check for a rights reversion clause in the contract. If the publisher doesn’t have one, request that they add it. The SFWA model contract is a good example.
2. With or without the clause, keep open communication with the publisher. Ask for updates on the publication of your story.
3. If the publisher is responsive and gives you a new publication date, consider giving them the benefit of the doubt. Lots of things beyond the publisher’s control can happen in the course of putting a magazine together, and, as a former magazine editor myself, I’m inclined to be gracious.
4. If you do decide to pull your story because the rights reversion clause is activated, notify the publisher of your intentions.
5. If there is no rights reversion clause in the contract and you want to pull the story, email the editor and request you be released from the contract. If you don’t and just start sending the story elsewhere, you may be in breach of contract.

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In short, this is a shitty situation no author wants to find themselves in. Luckily, out of some 700 submissions, I’ve only run into a situation like this once, so I don’t think it’s particularly common, especially with publishers who have a rights reversion clause in their contracts. The best thing you can do to avoid situations like the ones above is make sure you cover your bases with a rights reversion clause before you sign on the dotted line. Then, if you are forced to pull a story, you’re covered from a legal standpoint, which makes the whole shitty process a little less shitty. 🙂

Thoughts on rights reversion clauses and failure to launch? If you have any legal insight into this situation, I’d definitely love to hear about it in the comments.