Model Trade Book Contract

10.

Reversion of Rights.

    1. Out of Print.

      If, after the expiration of two years from the date of Publisher's first publication of the Work, the Work is "Out of Print" (as defined below) through ordinary retail channels, Author may, by written notice to Publisher, request Publisher to reissue the Work or license rights in the Work. Publisher shall notify Author in writing within 30 days after Publisher's receipt of a demand whether it intends to comply. If the Work is Out of Print and Publisher does not respond, or if, within 6 months following its issuance of notice that it intends to comply, Publisher has not complied by reissuing the Work or entering into a license for a new edition, then this Agreement shall terminate and all rights granted to Publisher hereunder shall automatically revert to Author, subject to Publisher's continued participation, to the extent provided, in any licenses granted by Publisher. For 30 days following termination of this Agreement pursuant to this Section 10, Author shall have the right to purchase available production materials (if any) at cost or less, as determined by Publisher. The Work shall be considered to be Out of Print if (i) Publisher is not offering copies of the Work for sale in the U.S. in a full-length English-language edition and there is no existing agreement between Publisher and a licensee of Publisher requiring publication of a full-length English-language edition in the U.S. within the next 12 months, or (ii) the Author's combined income from sales and licenses of the Work was less than [$250-350] for the prior two accounting periods.

    1. [Foreign Language Rights.

      For each language other than English in which the Publisher has not executed a license for or commenced production of the Work within [two/three] years following its initial English-language publication, Publisher shall, upon receiving a written request from Author, revert such rights in the Work. A single notice regarding reversion of all such unlicensed rights shall be deemed acceptable.]

    1. [Audiobook Rights.

      If Publisher has not published an audiobook of the Work or executed a license for or commenced production of the Work in audiobook Format within [two/three] years following the initial publication of the Work, Publisher shall, upon written notice from Author, revert such rights in the Work.]

Commentary

Any reasonable publisher will include in its standard agreement an out-of-print clause (also called a "reversion of rights" clause). The out-of-print clause is designed to spur your publisher to keep the work selling for as long as it is profitable for both parties. When the publisher is no longer willing to invest in printing and distributing the work, then the publisher should no longer have exclusive rights to it. By keeping the book out of circulation and not allowing the author to exploit the rights, the publisher cuts off the author's potential income. Considering that most copyright grants are for the term of copyright (see Section 2(d)), a well-crafted out-of-print provision that allows an author to get a timely reversion of rights from the publisher when the book is out of print is very important.

 

Older versions of the clause defined "in print" in terms of availability of stock or the publisher's ability to fulfill orders, but because of the advent of print-on-demand technologies that allow publishers to keep minimal stock or fulfill orders on demand, this definition is no longer sufficient to guarantee a reversion of rights. Note that the Model Contract clause defines "in print" by reference to the availability of full-length English-language editions in the U.S. (excluding book club, large print, and braille copies) and to the author's share of earnings from the work (this is known as an "earnings threshold"). Some publishers will seek to tie in-print status to the number of books sold during the relevant period (this is known as a "sales threshold"). It is not prudent to agree to a sales threshold, because this will allow the publisher to include copies of your work sold at a deep discount in such sales calculations, maintaining in-print status while passing on diminished royalties to you. Ideally, if a work is only available via print-on-demand or ebook technologies, the work would only be deemed in print if the author receives a minimum floor in royalties over the course of two consecutive six-month royalty periods (such as $250–500). Ideally, the clause would state that the amount is to be adjusted every five years for inflation.

 

Some publishers' contracts do not define "in print" at all, and the publisher could use that obscurity to argue that the existence of a foreign edition or non-print version means the work is "in print," thereby preventing you from reclaiming U.S. rights. Therefore, you need to insist that the contract actually define the conditions under which the work will be considered in print.

 

Also avoid language that defines a work as "in print" if the publisher has granted an option to reprint to another publisher. This could prevent you from reclaiming the rights even though the work is not available. However, it may be acceptable to define as "in print" a full-length trade edition of the work that the publisher has licensed to another publisher that will offer the work for sale within 12 months (see Section 10(a)).

 

Pay close attention to any provisions concerning remaindering of the work given that the remaindering of all print format editions is a precursor to out-of-stock/out-of-print status (see Section 5(j)). Publishers will rarely agree to notify the author of print status. Instead, this burden is placed on the author, despite the fact that the publisher is in a better position to know this information.

 

Unless your contract allows for a reversion of rights based on an earnings threshold, you will have to keep track of your book's sales. If your royalty statement shows more returns than sales, then you should try to find out whether the book is currently available in local bookstores. If the work is not available, do some more research:

 

  • Consult the current version of Books in Print (available in most libraries), the publisher's current trade catalog, or a major online bookstore, such as Amazon.com, to determine whether the work is available directly from the original publisher or from a licensee.
  • Order several copies to see if the work is available or if it is reported to be temporarily out of stock, indefinitely out of stock, or out of print.
  • Ask bookstores to check their computer listings to determine whether your work is available for sale or order.

 

If your investigation indicates that the book is not available and offered for sale in the U.S. through normal retail channels from the publisher, request in writing that the publisher revert the rights. If the publisher fails to respond within several weeks, contact the Authors Guild for further help.

 

Note that a reversion of rights under this provision does not affect outstanding sublicenses. For instance, if your publisher has sublicensed a German language edition of the work, that license will continue until expiration or termination on its own terms; the publisher will be responsible for paying you royalties from foreign editions until the sublicense ends. However, once the sublicense ends, the publisher cannot renew it or sublicense another version as those rights will revert to you. Further, if your contract contains language similar to Section 11(a), then you may be able to terminate the German license on the same out-of-print terms as your contract with the publisher.