D. J. Herda

When a reader recently asked how to bring an out-of-print book back from the dead, even though there are still copies of it circulating around the Internet, I figured the answer would be reasonably straightforward. And then some other folks chimed in and gummed up the works. Here's how I cleared the air.

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For starters, I suggest you ignore two extremely poor answers you've received to this question so far. Following the advice of either could be damaging to your financial health. Besides, neither one really answers your question.

Part of the misinformation is due to the respondents' lack of knowledge and understanding of the situation, and part rests with you. Your failure to identify the author of this mystery book negates the opportunity for a down-and-dirty answer, necessitating a more complex look at the issue. Much more. Here's the real deal.

First, the fact that copies of the book are still floating around doesn't influence the book's in-print status. That can be determined only by the legal definition contained within the original publishing agreement between the author and the publisher. And, not surprisingly, that can be a very crooked line to walk.

Even though you may not have seen any new copies being sold by Amazon, B&N, or anyone else for years, or the book is listed as "out of print" somewhere, the publisher may still claim to have it available as a POD (Print on Demand) book in its catalog or backlist. That fact may support its contention that the book is still in print and, thus, under iuts control. It's a sticky wicket where the definition is concerned, and an attorney skilled in publishing matters may need to step in to reach a determination. Read More 

Someone recently asked if she could use a copyrighted photograph of a deceased model taken by a deceased photographer in a magazine article exploring the model's murder. It's an interesting question. And it's one that every nonfiction writer faces eventually. So, what are the legalities involved here? This is how I responded:

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For starters, remember that U.S. copyrights extend throughout the lifetime of the copyright holder plus seventy years. After the copyright holder's death, those rights are passed along to the heirs who can sell them if they wish to a third party, such as a photo agency or a product developer.

Regardless, in this situation, at least, it appears as if the judicial concept of Fair Use is in force. If that's the case, you should be able to use the images for illustrative purposes in your magazine article, with a couple of caveats. According to the Website of the American Bar Association in referencing the right to fair use:

"The first thing that we need to know is that copyright protection does not protect factual information conveyed in the copyrighted work, meaning that publicizing the scores of a sporting event or other factual information such as injuries, retirement, and so forth is considered fair use and does not constitute copyright infringement. What helps to strengthen a fair use argument in a case not involving the use of mere factual information is the use of the copyrighted material for the purpose of legitimate news commentary. For example, when using a clip or photograph to report the results of a sporting event or other factual information, courts have regarded the use of copyrighted material as fair use when the use is (1) brief quotations only; (2) presented in a news report; and (3) presented in a newsreel or broadcast of a work located in the scene of an event being reported." Read More 

To the writer who wanted to know whether he should risk rejection and waste time begging agents to accept his book or go the quicker route and self-publish it, my answer left little doubt as to where I stand. If you have any questions after reading it, just let me know!

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Should you go the conventional publishing route? Absolutely. Should you plan on begging, cajoling, or bribing agents to accept your manuscript? Absolutely not. There's a right way and a wrong way of doing everything in life, and that's especially true when pitching a literary agent or even a publisher, for that matter. Write an enticing, one-page pitch for your book. Then, write the perfect complete book (fiction) or sample chapter with an outline (nonfiction) on a hot, marketable topic, and I guarantee you success.

And, since you brought it up, what's so enticing about getting your book published quicker, anyway? Even if it took only 24 hours to produce (which won't happen), if it sells two copies, what's the advantage? See where I'm going with this? Quicker isn't always better.

Here are a few other publishing-industry misconceptions I'd like to clear up. Read More 

Somebody asked me this question the other day--and someone else before that, and someone else. It's a hot topic with some people. And, I'm sorry to disagree with those who say the future of books is all digital, because they're wrong, and they've been proven wrong a lot. Numerous studies, polls, and industry statistics show that digital sales are flagging and have been for years, while the percentage of print sales is holding its own and even rising. The novelty of the digital book, it seems, is wearing off. And so is its perceived value.

I stopped to think about that just the other day. I mean, what's so bad about digital books? Buy a digital book, and you have access to it wherever and whenever you want. Buy a physical book, and you have access to it wherever and whenever … Oops. Never mind. Forget that one. How about this:

Buy a digital book, and gift it to a friend or leave your digital library to your heirs when you die. Buy a physical book … Oops. Never mind that one, too.

Buy a digital book, and it's yours as long as the software is kept in service. Buy a physical book and it's yours … Ouch. I missed on that one, as well.

Here's one I can't screw up. Take a physical book to the pool and drop it in the water, and you're out twenty or thirty bucks. Take a digital book to the pool and drop it ...

Oh, hell. Read More 

You know how some people on their day off think about fun things to do with the family? Well, I was thinking the other day about the likelihood of a debut author landing a book contract with a major publisher--one of the Big Five, to be exact. Not that it hasn't been done before. But ... well, not very often.

So, how likely is a debut author to get published by a major publisher? Not very. As in NEARLY NEVER. And I'm not talking about someone whose work is poorly executed, badly edited, and rife with typos and other errors, which is a no-brainer. I'm talking about first-rate writers with a solid understanding of their craft who have produced a top-quality first book. The chances in that case? Still, next to none. Yes, the marketplace is just that competitive and glutted.

Notice that this question doesn't even begin to broach the subject of marketability, which has become such a critical player in today's publishing industry that, unless an author can guarantee solid sales right out of the box, most conventional publishers won't give him or her a wink and a nod. I see Pulitzer- and Nobel-quality books passed upon every day just because the publisher can't envision dollar signs as the book rolls off the press. Read More 

One day back in the Sixties, PBS television host Bob Cromie had author Gore Vidal on his show, Book Beat. At the time, Vidal was riding high on everyone's list of favorite authors. Toward the end of a fascinating interview, Cromie posed a question to Vidal similar to the one you ask. Vidal replied something along the lines of, That's easy. Give up writing. Quit.

Cromie, slightly taken aback, said that Vidal surely didn't mean that the way it sounded, to which Vidal added, Absolutely I do. The best advice I can give struggling young writers is to give up writing for good.

By this time, Cromie, never one to surrender a battle without a fight, said that Vidal must not be serious because there were hundreds of thousands of fledgling writers in America just waiting for some advice and a chance to succeed as published authors. Surely, he cajoled, there must be something Vidal could offer in the way of advice, to which the author responded:

Look, for every new author who comes along and makes it, that means there's one less book for me to write. I don't like those odds, so my advice is for all of them to quit right now. Read More 

When I began writing five decades ago, I found editing my own work a painfully difficult experience. I agonized over what to change and why, mostly because I didn't know a dangling particple from a split infinitive. After taking a few college journalism courses, I picked up a book on etymology and studied several classic works on how to write better. I began stringing for a local newspaper before landing an entry-level job as an editorial assistant for a national magazine. And, do you know what? Editing suddenly got easier.

Thank goodness, too, because even the most poorly written books can be improved with effective editing. Unfortunately, not all editing is "effective."

A case in point: I wrote a nearly perfect book a few years ago. No surprise. I'm a perfectionist. I've worked as a professional editor for most of my life; I've taught analytic grammar and creative writing workshop at the college level, and I ghostwrite, book-doctor, and edit for other authors. And, I'm a perfectionist. (I know, I know. I just wanted to hear it again).

My publisher assigned my manuscript to an editor who introduced herself in an e-mail. Not having worked with her before, I told her I was looking forward to any substantive suggestions she might make but that I didn't want her editing my work to change the book's voice or style to meet her own literary preconceptions and preferences. She said she understood. Read More 

Someone recently asked me how he could find a reliable editor for his first novel. It seems the last people he'd hired stole his "uncopyrighted work," which left him with a bad taste in his mouth for this whole writing/publishing business. Understandbly. Adding to his trauma, he wants to publish his novel by the end of 2021. Is that even possible?

Well, first, I corrected some fallacies that others were throwing his way, so he didn't waste time running down a blind alley. Here's what I told him in a nutshell

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1. You don't have to register your work with the U.S. Copyright Office to protect it, and, in fact, you can't do so unless you're a U.S. citizen. Registering your work, while having some advantages, also takes time, and that's something of which you don't seem to have a lot. The good news is that, regardless of where you live, virtually all countries recognize the copyright of a work from the time of its completion. If you could afford an attorney or a legal counseling group's recommendation—or even learn more about copyright law yourself—you could go to the thieves of your work and demand in writing that they cease publication and reimburse you for any monetary losses you may have suffered. In lieu of hiring an attorney, you could join a writing association such as the Author's Guild, which provides complimentary legal advice and services to their author members.
2. As for getting an agent, you can't just look in a guide and select one to represent you. Agents are overwhelmed by requests for agency representation and, thus, can afford to be incredibly selective. I've long said that the only thing more difficult than getting a book published conventionally is locating a receptive literary agent. And I say this, having had six to date. But I'm the exception and not the rule.
3. Similarly, while you search the Web to find conventional (that is, advance-paying) publishers who accept unagented manuscripts, the chances of anyone even reading your material, let alone contracting with you to publish it, are minimal. The reason, as in finding an agent, is that the ocean is filled with swimmers, and there are only so many lifeboats to pluck them out of the sea. Besides, conventional publishers take an average of anywhere from one to two years to bring a book to market. Read More