Q. How do I get e-book rights for my out of print books published before the days of e-books?
A. As always, the answer exists in your publishing agreement. You must closely examine two sections: your “grant of rights” to the publisher and your “out of print” clause. There are four possible scenarios:
1. Your book is out of print, and you have received a reversion of all rights from the publisher under your out of print clause. In that case, you own the electronic rights.
2. Your book is out of print, you have not requested or received a reversion of all rights, or you are not yet entitled to request a reversion. You have an older publishing agreement whose grant of rights included only “print” rights. Because a fundamental principle of book contracts is that the grant of rights is limited, and authors retain rights they have not expressly granted to publishers, e-book rights, under such older book contracts, were retained by the authors. (For example, Random House quite famously changed its standard contract to include e-book rights in 1994 because its authors did not grant those rights to it under Random House’s standard contracts prior to 1994.) This principle was supported by the cases of Random House v. Rosetta Books and New York Times v. Tasini. Therefore, in this case, you own the electronic rights (even if the book is NOT out of print!
3. Same situation as #2, but your grant of rights was for “any and all media and forms of expressions now known or hereafter devised.” In this case, it is likely that a court would deem electronic rights to be included, and you must request and obtain a reversion of all rights under your out of print clause
4. Same situation as #2, but your grant of rights does specifically include “electronic rights,” but without defining them. Now you are in a gray area. Does this include the right to convert the book into a derivative work such as a CD-ROM, DVD or e-book format? Is it the right to put the book, in whole or in part, on the Internet? Does it include print-on-demand? Electronic databases? Practically, your only remedy is to request and obtain a reversion of all rights.
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. 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.
© 2010 Daniel Steven