As you know, my publisher went bankrupt recently and regardless of the clauses in my contracts assuring me that I would have my rights (to the books) returned immediately upon such an event, I’ve learned differently.
Bankruptcy courts can, and do, override the clauses in the contracts you sign and can usurp your rights to re-sell your books to the publisher of your choice. I don’t know about you but this strikes me as totally unfair and it puts a penalty on the author (who kept her/his side of the contract).
The only way we can stop this (and it’s too late to help me or the other authors at Triskelion) is to write our U.S. senators and congresspersons and urge them to sponsor legislation barring this practice.
It's easy to do. Just google "Find your U.S. Senator" or "Find your Congressperson" and you can fill out a form for each one online. You can cut and paste your letter.
Here's what I've sent to my senators and congressman. Feel free to incorporate my wording if it serves your purpose, although you may want to vary it a bit so they don't view this as a form letter.
Dear Senator X:
Writers, illustrators and composers in this country are being subjected to a grave injustice – by our own federal judges. This is a situation that can only be rectified by an act of Congress, and I urge you to consider sponsoring such a bill.
Briefly: Professional creative artists contract with publishers, producers or similar entities to bring their works before the public. These contracts generally include a clause stating that, in the event of the entity’s bankruptcy, all rights in the contracted work revert to the artist. Many of us would hesitate to sign contracts without such protection.
Yet, unknown to many of those signing such agreements, federal judges routinely void these clauses in the event of a bankruptcy by the publisher/producer. Their rationale is that bankruptcies are adjudicated under federal law and contracts are signed under state law, and that federal law takes priority. Therefore, they seize these rights and allow the trustee in the case to sell them off without the creative artist’s consent.
There is a marked discontinuity between what copyright and contract laws say vs. what bankruptcy law says. That should not be allowed to continue.
I contracted with Triskelion Publishing, an Arizona LLC, to publish two novels and a novella. I received no advance payment, only the contractual assurance of a percentage of sales revenues (royalties). Then in July 2007, Triskelion declared bankruptcy.
Not only am I owed royalties for sales in the second quarter, but the bankruptcy court proceeded to confiscate my rights – and those of numerous other authors – in violation of our contracts. Thus we face not only a loss of moneys owed, as would any creditor in a bankruptcy, but a far more serious affront: the loss of control over our creative work.
Further information and confirmation of these basic facts may be obtained from the legal department of The Authors Guild in New York or RWA (Romance Writers of America) in Texas.
Freelance writers, illustrators and composers are among the most vulnerable members of our economic community. We are not protected by minimum wage laws; we receive no benefits, overtime, paid vacation or sick leave; we have no job security; and we are often poorly compensated. Our only protection lies in our contracts. By voiding a key provision in such contracts, the courts deny us control over the future use or misuse of our works.
Legislation banning bankruptcy courts from voiding such clauses would, in my opinion, have no widespread ramifications or harmful effects on trade or commerce. It would simply protect those who enhance our society through their creativity against an unnecessary and unjust confiscation of their rights by federal judges.