13.
Termination.
(a) If the Translation is out of print or unavailable for sale as described in 14(b), the Translator may send a written request to the Publisher for the full reversion of rights. If the Publisher fails to reissue the Translation or make it available for sale within 6 (six) months of the Translator's reversion request, all rights in the Translation and any other rights granted to the Publisher herein will automatically revert to the Translator, subject to any outstanding licenses still in effect (but no extensions or renewals thereof).
(b)
Option 1: The Translation will be considered available for sale only when print copies are available and offered for sale in the United States through normal retail channels.
Option 2: The Translation will be considered available for sale only when copies are available and offered for sale in the United States through normal retail channels. The Translation will not be considered available for sale if it is available only in print-on-demand and/or ebook formats, unless sales from both formats combined exceed $ in the most recent two accounting periods.
Option 3: The Translation will be considered available for sale only when copies are available and offered for sale in the United States through normal retail channels. The Translation will not be considered available for sale if it is available only in print-on-demand and/or ebook formats, unless the Translator's royalties in the most recent two accounting periods are $_____ or more.
(c) The Translation will not be remaindered within two years from first publication without the Translator's agreement. If the Translation is remaindered, the Publisher will pay the Translator 1% (one percent) of receipts on copies sold at above cost and will give the Translator first refusal to purchase copies at the remainder price.
(d) Notwithstanding the foregoing, if at any time the rights to the Work revert to the Author, the rights to the Translation will at the same time automatically revert to the Translator.
(e) If the Publisher defaults in the delivery of statements or making of payments, or should otherwise be in breach of a material provision of this Agreement, and fails to secure such default or breach within 30 (thirty) days of notice thereof from the Translator (10 [ten] business days, in the case of a failure to render statements or payments), this Agreement will terminate and all rights granted to the Publisher hereunder will revert to the Translator, without prejudice to monies paid or due.
Without a reversion of rights clause, you may not be able to reclaim the rights to your translation if it goes out of print, at least until the statutory right of termination under Section 203 of the Copyright Act is triggered 35 to 40 years from the date of grant or from publication, or if the publisher in its discretion returns the rights to you. If your translation is not selling, you should have the ability to revert your rights so you can seek to license the translation to another publisher or self-publish (assuming permission from the author). The language in Clause 13(a) of the Translation Model Contract allows you to ask for a full reversion of rights if your translation is not available for sale (see Availability for Sale, below). Remember, however, that since the grant of rights depends on the scope of the grant of rights for the work you translated, if you want to republish the work, you need to get permission from the rightsholder to the original work (unless the original is in the public domain, in which case you don't need permission to publish your translation), whether that is the author or a third party, in order to avoid the risk of infringing their rights. Unfortunately, it is still often the case that boilerplate translation contracts do not contain a reversion of rights clause. Unless you prepare the translation as a work-for-hire, your contract should contain a clause on reversion of rights.
Availability for Sale
Because your ability to request a reversion depends on whether or not your book is "available for sale," it is very important to define this phrase narrowly; an overly broad definition coul allow the publisher to keep the translation in print and available for sale indefinitely, thus defeating the purpose of a reversion of rights clause. The Translation Model Contract lays out three different options.
Option 1: Ideally, your contract's reversion of rights mechanism should stipulate that the translation will be considered "in print" or available for sale only if print copies are available through regular retail channels in the United States. This allows you to request reversion of your rights if the publisher's print inventory starts to dwindle. If the publisher wants to continue selling the translation, they will reissue the translation within 6 months from the date of your request; if not, then your rights in the translation will revert to you at the end of the 6-month period.
Option 2: The second option covers scenarios where the translation's sales are heavily dependent on electronic or print- on-demand formats, and where the publisher would be unlikely to agree to a reversion based solely on the unavailability of print copies. Since print-on-demand and electronic formats don't require any action from the publisher once they're introduced, they allow the publisher to control the rights indefinitely. If you insert a requirement, as stipulated in Option 2, that your translation has to accrue a certain dollar amount in sales or a certain number of copies sold (aka a "sales threshold") in order to stay in print, then the publisher is at least obligated to maintain a certain level of sales.
Option 3: The third option is similar to Option 2, except that print-on-demand and electronic formats must generate a certain amount in royalties (known as a "royalty threshold") to be considered in print. Option 3 is ideal if your contract contains royalty provisions, since it allows you to regain your rights if you are no longer earning from the sales of your translation. An important distinction to note between sales and royalty thresholds is that the latter guarantees some minimal income; because of deep discounts and other provisions that may limit royalties, sales do not necessarily mean royalties. The sales threshold may be your only option under a contract that lacks royalty provisions, but if you are able to negotiate royalties, then we strongly advise you to include a reversion mechanism based on a royalty threshold. While it may be tough to negotiate, it is worth pursuing.
Regardless of the out-of-print reversion terms, you should seek to include a provision per Clause 13(d), requiring the publisher to revert the rights to the translation to you if the publisher's agreement with the author terminates for any reason (not just if the work is out of print), and a general termination provision per Clause 13(e).
Remainders
Almost all publishing agreements have a clause that allows the publisher to sell off their stock at cost or less if sales slow down (a practice known as remaindering). Books that are remaindered should be offered to you first at the remainder price (which should be the cost of manufacture or lower), and books should not be remaindered until at least two years after initial publication of the edition being remaindered. If you have the ability to pay for the remaindered copies and have a place to store them, it is always best to purchase the copies to be remaindered and arrange for their sale or other distribution yourself, provided you are able to find a company that will do this at a reasonable cost.