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: [Read more…]