Welcome to another installment of Writing Wednesday, the blog’s weekly spotlight on publishing law. The information appearing in this post also appears on Twitter under the #PubLaw hashtag.
Today’s topic: termination of publishing contracts.
Generally speaking, publishing contracts have an indefinite term, and last until terminated in accordance with their terms “or by applicable law.” Contracts with an indefinite, ongoing term mean that the author is locked to the agreement in perpetuity unless the contract contains adequate termination provisions.
The publisher generally reserves the right to terminate the contract at any time upon notice to the author, sometimes with a limitation requiring a certain notice period. More commonly, the publisher can terminate “at will” (meaning immediately) upon written notice.
Authors generally do not have a reciprocal “at will” termination right. This makes sense, because the publisher is investing time and money in the author and the book, and the publisher wants the right to benefit from that investment. Even so, authors should ensure that their publishing contracts contain adequate author-termination rights to protect the author in case the publisher doesn’t perform its obligations properly.
Authors should be able to terminate the contract (and obtain a reversion of rights) under at least the following circumstances:
1. If the book is not published in the agreed-upon format(s) within a certain time, or before a certain date.
2. If the publisher ceases to publish and the book goes “out of print” – but beware – the definition of “out of print” is vitally important and often doesn’t mean what the author thinks it means. This issue is so important that next week’s post will be dedicated exclusively to understanding what “out of print” means (and should mean) in a publishing deal.
3. If the publisher fails to properly report and/or pay royalties within a specified period. Contracts often allow a grace period for payments and reporting, but a secondary clause allowing the author to terminate (and reverting publication rights) can be a good idea, especially when dealing with a small or unfamiliar press.
Another provision authors may desire allows for termination by the author if the publisher fails to sell a specified number of copies of the work within a specified period of time. Many publishers won’t accept this language, but some will.
Today’s take-away message: beware contracts with entirely one-sided termination rights. Make sure your contract protects your rights to terminate if the publisher doesn’t perform. And above all, make sure that termination is tied to rights reversion – the ability to terminate means nothing if the publication rights remain in the publisher’s hands.