Defining “Out of Print” in Publishing Contracts

“Out of print” status is important to authors (and publishers), because in most contracts out of print status triggers reversion of rights. Beware publishing contracts which don’t include a reversion of rights (or the right to revert on written notice) if the work goes out of print.  Also, beware publishing contracts which tie “out of print” status to anything but royalty-bearing sales of the work.

Historically, Standard Contracts Tied “Out of Print” Status to Availability–But No Longer.

Before ebooks, most publishing contracts tied out of print status to a novel’s “availability.” The book remained in print as long as it was “available” for sale through the publisher’s regular sales channels.

Ebooks changed the equation, however, because of the ease with which a book remains “available” in electronic format. As long as a publisher keeps an ebook listed on its own website (or Amazon, or any other sales site) the book is “available”–and potentially “in print.” For this reason, good publishing contracts now tie out of print status to sales–specifically, royalty bearing sales.

Authors should look for language allowing reversion of all rights to the work if the publisher fails to make a stated number of royalty-bearing sales within a specified time period (normally, 6-12 months).

When reviewing “out of print” language and reversion rights, authors should look for three important clauses:

1. Make sure the contract defines “out of print” with reference to royalty-bearing sales numbers. Beware contracts that tie out of print to “availability” or “stock on hand” – those are dangerous pitfalls in the digital age. If the contract merely states that the work remains in print until “no longer offered for sale” or “not offered for sale for X consecutive months,” you may find yourself trapped.

In the days of print-only contracts, publishers could define “out of print” by reference to a work’s availability because sales depended upon the production of printed books. When the books all sold, and the publisher chose not to pay for another print run, the book went out of print. Now that publishing contracts generally include electronic rights, however, “out of print” status must be much more carefully defined. Make sure your contract allows termination and reversion if royalty bearing sales fall below a stated number.

2. Automatic termination vs. termination by notice. Some contracts allow for automatic termination if sales fall below the stated threshold, but more commonly, the author must send a notice. Also, the publisher typically has a stated period (6 months or so) to return the work to in-print status and avoid termination.

Most publishing contracts contain a notice and revival provision of some kind, and from the publisher’s view, this makes sense. Publishers invest time and money into preparing and distributing your work (and that’s without considering marketing, if any). 

3. Non-ambiguous statement of rights reversion. It isn’t enough for the contract to state that the agreement terminates or can be terminated when the work goes out of print. The contract must also include a non-ambiguous statement of rights reversion providing that all rights granted to the publisher automatically revert to the author upon termination. If possible, make reversion automatic (after notice and expiration of any waiting periods), and not dependent upon a signed release or notification from the publisher.

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 ended and/or the work has gone out of print.

Read your contracts carefully, and make certain you know what they mean. Don’t settle for “your interpretation.”

Make certain the contract ties out of print status to royalty-bearing sales thresholds, not “availability.” And if you have any questions, get a professional opinion – even if that means paying for a specialist’s advice. 

Once you sign, the contract controls your legal rights and obligations. Authors who take the time to ensure clear, acceptable and unambiguous terms up front, have a far better chance of successful long-term relationships with their publishers.

Have questions about publishing law or contracts? Ask them in the comments or via Twitter using the #PubLaw hashtag