Therese here to officially welcome our newest contributor to Writer Unboxed: publishing attorney and author of the Shinobi Mysteries, Susan Spann!
In January, my guest post here at Writer Unboxed took a look at reversions of publishing rights and how to request them. Toward the end, I mentioned the benefits of clauses tying out-of-print status (and author termination rights) to a stated number of royalty-bearing sales. Today, we’re taking a closer look at out-of-print clauses, and how to understand them.
The “out of print” clause is often one of the author’s only chances to terminate a publishing contract without the publisher’s advance agreement (the legal term for this is a “unilateral” termination right).
In traditional publishing contracts, the author should have (at a minimum!) the right to terminate if the publisher goes out of business, fails to publish the work or pay royalties due within stated periods of time, or fails to sell a stated number of royalty-bearing copies of the work within a stated time. (Many publishers will agree for authors to retain additional termination rights as well, but that’s a topic for another day.)
However, many older publishing contracts don’t tie out-of-print status to royalty-bearing sales. Instead, they tie out-of-print status to “availability” (or, worse, give the publisher the unilateral right to declare the work out of print). Some publishers still offer authors contracts using these older forms, so read the out-of-print language carefully—and negotiate it if necessary—before you sign a publishing deal.
When reviewing out-of-print clauses, look for three critical components:
- How the contract defines “out of print”
New contracts should define “out of print” with reference to stated sales numbers, and preferably to royalty bearing sales. (This prevents a publisher from keeping your work in print by putting the book “on sale” below the royalty threshold to prompt a rush of sales and keep the work under contract.)
This is the kind of language you’re looking for: “The Work will be ‘out of print’ if the Publisher fails to sell at least 250 royalty-bearing copies, in the aggregate, during any period of six (6) consecutive months (or longer) during the term of this agreement.”
Beware of clauses that say the work is out of print:
- When “no longer available” for sale. (Note: a work is “available” as long as the ebook remains on the publisher’s website or on Amazon.)
- When “the publisher determines” the work is out of print or “no longer profitable.”
- When “no copies of the Work remain in the Publisher’s warehouse.”
These clauses, and others like them, can trap an author and a work in a contract that never ends.
Tying out-of-print status to availability, or to books in a warehouse, made more sense when sales depended exclusively on production of printed books. The existence of ebooks changed this dynamic, however, and out-of-print language has also changed.
- An understanding for what happens when the work goes out of print
Normally, publishing contracts require the author to notify the publisher of the desire to terminate when the work goes out of print. Many times, the publisher also has a stated period of time (commonly, 6-12 months) to bring the work back to “in print” status before the author’s termination notice takes effect.
Rarely, a contract will automatically terminate when the work goes out of print—but this isn’t normally the best option for the author. Sometimes, authors would rather keep a backlist work “in print” despite low sales.
Generally, it’s better for the contract to give the author the right to terminate if sales fall below the out-of-print threshold.
- A non-ambiguous statement that all rights revert to the author automatically when the contract terminates
It isn’t enough for the contract to give the author termination rights when the work goes out of print. The contract should also include a non-ambiguous statement similar to:
“All rights granted to the publisher revert to the author automatically upon termination of this agreement, regardless of the reason for termination.”
Without a clear statement of rights reversion, rights to the work could remain in limbo—or worse, remain with the publisher—even though the work is out of print.
A non-responsive publisher can effectively hold an author’s work hostage by refusing to send a written reversion of rights or acknowledgement of contract termination. While not a complete solution, unambiguous language stating that rights revert automatically when the contract terminates can help prevent a number of legal problems.
If you don’t understand the out-of-print clause, or if the publisher refuses to tie the work’s out-of-print status to royalty-bearing sales, consult an attorney or agent BEFORE you sign.
After you sign, the law (and the contract) will limit your legal rights. Ensure your contract matches the current industry standards—and your personal preferences—before you commit to a publishing deal.
It’s better to have no contract at all than a contract you regret.
Do you have any experiences you’d like to share? The floor is yours.