Writing Wednesday: When Is Your Work “Out of Print”?

Last week’s Writing Wednesday feature discussed contract termination provisions. This week, we’re continuing that conversation and focusing on when works go “out of print.”

“Out of print” status is important to authors (and publishers) because most (and all good) publishing contracts state that the contract terminates, and rights granted to the publisher revert to the author, when the Work goes “out of print” or within a stated time thereafter – generally 3 to 6 months.

When reviewing an “out of print” termination provision, the author should look for three important details:

1. How the contract defines “out of print.” 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,” the author may find herself trapped in perpetuity.

At a minimum, the contract should define “out of print” with reference to all formats and all rights granted to the publisher.

That goal can be accomplished in different ways. A good contract may tie “out of print” status to sales numbers, to the availability of printed books, to certain kinds of distribution, or to other quantifiable events which ensure the work is not merely available for purchase but has a chance of actually selling. Tying out of print status to offers alone means the publisher can keep the book in print forever merely by offering the e-book version for sale through the publisher’s website.

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.

2. Automatic termination vs. Notice and Revival. Does the contract automatically terminate when the work goes out of print, or does the contract contain a “notice and revival” provision requiring the author to notify the publisher of his or her intent to terminate after the work goes out of print (and often giving the publisher the opportunity to produce another print run or otherwise return the book to “in print” status and avoid the 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). Reasonable pre-termination notice makes business sense, and actually makes sense for the author too – as long as the publisher holds up its end of the deal.

Automatic termination has clear advantages for the author. If the work ever goes out of print, the contract terminates and the author can do whatever he or she likes with the work – provided the rights also revert automatically, which leads us to point #3:

3. Non-ambiguous statement of rights reversion. It isn’t enough for the contract to state that the agreement terminates 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 (a) upon expiration or termination of the contract, including without limitation termination for out of print status, and/or (b) when the work goes “out of print.” Option (a) is far better, for reasons that I probably don’t need to explain.

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.” 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!