Out of Sight, Out of Mind ... Out of Print?

“Out of print” status is important to authors (and publishers) because a publishing contracts should terminate - or at least allow the author termination rights (along with reversion of rights granted to the publisher in the contract) - when the Work goes “out of print” or within a stated time thereafter. Many contracts allow the publisher a stated time to return the work to "in print" status before the author can terminate, but even that clause doesn't trigger until the work is out of print.

For obvious reasons, it's important for authors to make sure all publishing contracts contain clear, unambiguous language describing when the work is "out of print." And remember: the popularity and prevalence of e-books means the contract should require more than "availability in any form and format" or you could be stuck with a work that's still "in print" even though it's only available in .pdf e-book form through the publisher's website.

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.

The contract should define “out of print” with reference to royalty-bearing sales, not "availability for sale" or amount of stock in the publisher's warehouse. Note: that's "royalty-bearing" sales - which generally doesn't include cheap sales at deep discount or copies distributed for review and promotional purposes.

Tying out of print status to "availability for sale" means the book will remain in print forever if the publisher offers the e-book version for sale through the publisher’s own website. Back in the days of print-only contracts, publishers could define “out of print” by reference to availability because sales depended upon the production of printed books. When the books all sold, the work went out of print unless the publisher opted for another print run. Now that publishing contracts include ebook rights, “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 then give the publisher time to produce another print run or return the book to “in print” status in order to avoid termination)?

Most publishing contracts contain a notice and revival provision, and from the publisher’s view, this makes sense. Publishers invest time and money in preparing and distributing works (and that’s without considering marketing efforts). Reasonable pre-termination notice makes business sense, and it does make sense for the author too – as long as the length of the notice period, and the publisher's time to cure, are reasonable and related to royalty bearing sales.

Unilateral author termination rights on "out of print" status have clear advantages for the author. Under this scenario, the contract states that if the work ever goes out of print, the author can terminate the contract immediately (or on some stated period, usually 60-90 days) upon written notice to the publisher. This kind of termination right is more rare than notice and right to cure, but it's something for the author and the publisher to discuss.

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 expiration or termination of the contract for any reason, including without limitation termination for out of print status. Rights reversion should not require (or worse, be tied to) a written release of rights from the publisher. Reversion should be automatic and immediate upon contract 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 ended and the work has gone out of print.

Read your contracts carefully, and make certain you know what the out of print language means. Don’t settle for “best guesses.” 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 and greater benefits from their works.

Posted by Susan Spann

Susan Spann is a California publishing attorney and the author of Claws of the Cat (Minotaur Books, July 16, 2013), the first novel in the Shinobi Mystery series featuring ninja detective Hiro Hattori. You can find her on twitter @SusanSpann