Your grant or assignment of copyright to your publisher generally is limited only by the out of print clause. It therefore is critical that “out of print” be defined reasonably, especially now that digital and on-demand publishing can make the literal meaning of the clause obsolete. Ideally, the definition should be pegged to the publisher’s marketing efforts, not just to the book’s availability—when the book no longer is in the publisher’s catalog and/or available through major chains, it should be considered “out of print,” regardless of whether it still can be bought online.
Unfortunately, many out of print clauses are vague, suggesting only that when a book is no longer “available,” the author may ask it be declared out of print, and the publisher must respond within a certain time frame – usually six months – by either issuing a new edition or returning the rights to the author. But although there may be no print copies available (and the book remaindered), if the publisher’s web site or Amazon still lists an e-book version or POD version, it’s technically available.
Some other variations of the clause may state that a book is declared “out of print” if there are fewer than a certain number of books left in circulation, or if your royalties fall below a certain amount for one or more accounting periods, or if less than a certain number of e-books or POD books are sold in a year.
All the above versions of out of print clauses should be anathema to any author. It’s not in your best interest to have your rights tied up by a publisher who’s no longer doing anything with them. Once a publisher no longer actively is marketing your book and the book has stopped selling in decent quantities, your best bet is to get the rights back and either resell the rights to a new publisher (difficult, but not impossible), self-publish the book (POD publishing is great for this), or cut it up and sell the serial rights to magazines or anthologies, or so on.
Therefore, when negotiating your publishing agreements, try to get the following clause, or some close version into the contract (or modify the publisher’s clause accordingly):
“Out of print” is hereby defined as the Work not being available in theUnited Statesthrough regular retail channels in an English language print edition (not print-on-demand or other electronic means of reproduction) and listed in the Publisher’s marketing catalog. If at any time the Work is out of print during the term of this Agreement, Author may terminate the Agreement by written request to the Publisher. Within thirty (30) days of receipt of the request, the Publisher will return all rights in the Work to Author, subject to any prior grants of rights authorized and the continuing right to retain Publisher’s share of any future proceeds from those grants. If Publisher fails to provide a written reversion of rights, Author may record this page of the Agreement with the United States Copyright office in lieu of such written reversion.”
© 2010 Daniel Steven