Older publishing contracts typically stated that a work was “in print” as long as it remained “available through standard retail channels.” Tying “in print” status to availability worked fine in the pre-ebook world, because all “available” books were in physical formats. However, in the ebook context, language tying in-print status to availability means that a book will never go out of print. A publisher could simply leave the ebook available for sale through Amazon (or other sources) and it would remain “available” forever.
For this reason, modern contract language should tie “out of print” status to sales, rather than availability. The best language ties “in print” status to a specific number of royalty bearing sales within a given period (usually 6-12 months). Failure to specify royalty-bearing sales means the publisher could simply offer a free giveaway and keep the book in print based on “free sale” downloads.
The exact number of royalty-bearing sales required to keep the book in print is negotiable, and also varies depending on the sales period in which the sales must be made. Larger publishers may require a lower sales threshold to keep a book in print than smaller publishers, whose terms may be more author-friendly. Also, the sales to keep a work in print are usually counted “in the aggregate,” across all forms and formats.
A publisher’s contract may tie out of print status to availability simply due to a lack of updating. Other times, it’s intentional. When negotiating, don’t assume the publisher is trying to take advantage of you–if the language isn’t standard, just ask for a change. However, don’t accept a contract which ties out-of-print status to “availability” if the contract also grants ebook rights–or the work will never go out of print.
The best way to approach a publisher about the out of print issue is a polite request to tie out of print status to sales rather than availability. If the publisher refuses, explain (again, politely) that industry standards now tie out of print status to sales because of ebooks. Be aware: most publishers whose contracts I see already tie out of print status to sales, not to availability. If you receive a contract that still ties out of print status to availability, it’s either an old form or an attempt to prevent the work from going out of print. Without more, that isn’t a reason to refuse the contract–but it’s definitely a red flag, and something you need to negotiate.
If you have questions about this or other publishing legal or business issues, please feel free to ask in the comments or find me on Twitter, @SusanSpann.
Does your contract tie out of print status to sales or availability? If you negotiated it on your own, how easy (or difficult) did you find it to work with the publisher?