Happy New Year!
One of the author’s only chances to terminate a publishing contract unilaterally (a term which means “acting alone,” whether or not the publisher consents) lies in the contract’s “out of print” clause.
Older contracts allow the publisher to decide when a work is “out of print,” but the current industry standard ties out of print status to sales (or, better still, to “royalty-bearing sales”).
1. How the contract defines “out of print.” At a minimum, the contract should define “out of print” with reference to stated sales numbers.
For example: “For purposes of this Agreement, the Work will be considered out of print if the Publisher fails to sell at least 250 royalty-bearing copies, in the aggregate of all forms and formats, during any period of twelve consecutive months (or longer) during the term of this agreement.”
Beware of clauses that define out of print in the following ways:
- “the Work is no longer available for sale” (or “no longer available through publisher’s standard sales channels”)
- “the publisher determines that the Work is out of print”
- “no copies of the Work remain in Publisher’s warehouse”
All of these can trap an author, and his or her work, in a contract that never ends.
In the days of print-only contracts, publishers could define “out of print” by reference to availability because sales depended on the production of printed books. Ebooks changed this dynamic, however, by making books perpetually “available” as long as an ebook is offered for sale on Amazon or on the publisher’s website.
2. Automatic termination vs. termination by notice. Some contracts state that the agreement automatically terminates when a work goes out of print, while others contain a notice provision requiring the author to notify the publisher of the author’s desire to terminate the agreement if sales fall far enough for the work to be considered out of print. Contracts requiring notice from the author usually also give the publisher a stated period of time (normally 6-12 months) to increase sales and bring the work back into “in print” status before the author’s request to terminate takes effect.
While many authors think an automatic termination provision is better, there are situations where an author wants a work to remain in print despite slow sales. Keeping a work in print means readers can find it (at least in ebook format) and having backlist titles “in print” may be helpful for the author’s career.
3. A non-ambiguous statement of rights reversion on termination. It isn’t enough for the contract to give the author termination rights when the work goes out of print. The agreement should also include a non-ambiguous statement similar to:
“All rights granted to the publisher herein 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 contract has (or should have) ended and the work is out of print. Non-responsive publishers can hold authors hostage simply by refusing to send a written reversion of rights or acknowledgement after contract termination. A statement of automatic reversion helps prevent this unpleasant situation.
If you have any questions, get a professional opinion, even if that means paying for an attorney or finding an agent. After you sign, the agreement controls your legal rights and obligations, and often cannot be changed. Take the time to ensure your contract is unambiguous and compliant with current industry standards before you commit yourself and your work to any form of publishing relationship.
What do you think about tying “out of print” status to royalty bearing sales? Do your contracts contain sales-based out of print clauses?
Susan Spann writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. The fourth Shinobi Mystery will release from Seventh Street Books in August 2016. Susan is the Rocky Mountain Fiction Writers’ 2015 Writer of the Year, and also a transactional attorney whose practice focuses on publishing law and business. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium. Find her online at http://www.SusanSpann.com, on Twitter (@SusanSpann), and on Facebook (SusanSpannAuthor).