Just as a smart race-track driver knows the course before entering the race, a wise author knows how they can exit a publishing agreement before they enter it.
Although the average publishing contract provides the publisher with a number of ways to terminate the agreement, it seldom offers the author more than one off-ramp—namely, the “out-of-print” provision.
What Does the Out-of-Print Provision Mean? Generally, this provision signifies that following your work’s publication, if and when “copies” or what the publisher defines as “print copies” become unavailable, you have the right to terminate or request termination.
The standard provision may state something like this: “The Work shall be considered out-of-print if no editions are available for sale through ordinary channels of the book trade.” But the devil is lurking in one detail—the definition of “out-of-print.” Publishers have a variety of ways to define out-of-print that can prevent you from easily exiting the publishing agreement and regaining your rights.
Digital Copies Result from Digital Editions. The first question to ask is what it means for no editions to be available. While the publisher may have ceased to print and distribute trade or paper copies of your work, what about your e-Book copies? Once published, the e-Book edition costs little to nothing to post on a variety of book-selling platforms or the publisher’s website.
While a book seller may inform you paper copies are unavailable, your e-Book is never unavailable. If you have a traditional out-of-print provision, be sure that the only editions or copies it applies to are those on paper and not e-Books of any kind.
Print Editions Are Not What They Used to Be. When it comes to proving that paper copies are no longer available, you may be faced with still other challenges. First, it can be difficult to monitor the availability of paper copies if your publisher or a licensee is selling copies or planning to release a new paper edition in more than one nation and/or languages other than English. To counter this, try to limit the editions subject to the out-of-print provision to English paper editions published and sold “within the United States.”
Second, some small and indie publishers manufacture either a portion or all paper copies on a POD (print-on-demand) basis which, like an e-Book edition, is always available. POD copies should not be included in the out-of-print definition if the publisher has also provided paper print runs. However, if the publisher produces all paper copies via POD, which many small and indie publishers do, then you need to look at the following alternative to termination.
Minimum Royalties Anyone? Instead of using an out-of-print provision, propose that you be allowed to terminate when all sales of book editions—print on paper, digital, and POD–earn no more than some minimum amount in royalties over a particular number of accounting periods and after the publisher has published your work for an appreciable period of time.
For example, following the first three years of publication, if the author’s royalties (and licensing fees, if any) from print, digital and POD editions do not subsequently amount to a total of three hundred dollars over any two consecutive six-month accounting periods, the author has the right to give the publisher a six-month notice of termination at any point thereafter. (The suggested numbers are not recommendations but to flesh out the example). Basing your right of termination on minimum earnings is one of the easiest ways to monitor and exercise your termination rights.
Don’t Enter the Contract Without an Off-Ramp. Not all publishers are willing to negotiate every provision you may want to revise. But no matter what else you agree to, be sure there is at least one clearly understood route to take if you choose to exit your publishing agreement.