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"Out of Print" Clause May Mean
"Out of Luck" for Authors
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If your published book has been in the market for a number of years and if your book publishing contract is old and yellowed, now might be a good time to contemplate the future of the work you took so long to create. An author's book is a major part of his or her life's work, and because of this it becomes important to be able to determine whether or not this major undertaking will enjoy long, even perpetual, life, or will suffer sudden demise. Sales records are not the only clues as to how well a book will do, or more particularly, how long the book will sell. In addition to sales records as marks of a book's success, there is a small, often overlooked, portion of most authors' contracts in which the life span of a book can be determined. The typical clauses are titled variously: "termination," "buy back," "out of print." These are the usual phrases titling this most important aspect of any contract, yet they give no hint as to the underlying meaning contained in the paragraph. Consider the following typical contract clause:
If at any time after 2 years from the original publication date, the Work goes out of print for a period of 6 months, the Publisher will, upon written request from the Author, either restore the Work to print within 6 months, or else, upon payment to the Publisher of any sums owed by the Author, return all rights granted herein.
Can it be determined, by reading this paragraph, just when the Work is to be considered "out of print?" No; this paragraph has been drafted for sole interpretation by the publisher. Why? Consider the following example.
In 1985, Ration Books publishes Daisies and Their Progeny, by Ima Weed. The book sells well for five years. In 1990, there is a change in management at Ration Books and the publisher ceases promoting the book; sales decline, royalties dry up and readers can no longer buy the book at book stores or through catalogs. Ms. Weed realizes that the book still has great potential and that other publishers would be interested in purchasing the rights to publish it. She informs Ration Books that, as the book is now "out of print", she wishes to buy any remaining copies as well as the plates. All of this is provided for in Weed's contract. Ration refuses Weed's request, stating in a letter to Weed that "we continue to maintain inventory, and do ship several books a month to various libraries, institutions, etc. Therefore the book is not out of print."
Why would Ration behave in this manner? Because its executives have examined the sales history of the book and see that Daisies and Their Progeny may very well in the future make money again; they don't have the time to deal with it now, but may have one of Ration's subsidiaries re-print and promote the book again in a year or two (or three, four or five). Because the buy back clause in Weed's contract is so vague, Ration can reasonably argue to a court that the book is technically not out of print. Ration can also make it quite expensive for Weed to bring a law suit on this matter, and may therefore "bully" her into taking no action against them.
The solution to this problem? When the publishing a contract is offered to you, closely examine the buy back or termination clause and make certain it contains language allowing you, as the author, to have a reasonable say in when the book is deemed to be out of print. For example, a clause favorable to an author might read:
If at any time the Work is out of print, all rights in the Work as given to Publisher by Author under this Agreement, will revert to the Author and Author shall become full owner thereof. If at any time the Work is out of print, Author may, for $________, or a fee reasonably agreed upon between Publisher and Author, purchase the printing plates to the Work.
For purposes of this section of the Agreement, the Work shall be deemed out of print at any time in which Publisher does not ship at least _______ copies in any quarter of any year to book stores or other places of sale, or in any period in which royalties paid to Author are equal to or less than $__________. Publisher shall supply shipping figures to Author upon request. If at any time one of the above events occurs, Author shall have the right to declare the book out of print, in which case, the rights accorded to Author under this Agreement shall become enforceable.
Will all publishers agree to including the above clause in authors' contracts? No, they will not. This clause, as with the entire contract, is a business negotiation, and some publishers will agree to it while others will not. Your request that such a phrase be included in the contract will, however, tell the publisher that this is an important issue to you; it will open the dialogue for a clause that is at least more definite than the one in the first example, above.
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Garden Writers Association
10210 Leatherleaf Court, Manassas, VA 20111
Phone: (703) 257-1032 - Fax: (703) 257-0213
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