The Nine Worst Provisions in Your Publishing Contract – Part 2

Click here for Part 1 of the Nine Worst Provisions in Your Publishing Contract

No Minimum Performance Standards – Out of print

Out of print clauses have been in publishing contracts for a long time. The original rationale for them was that, unless a publisher kept printing books that could be sold, the publisher had tangibly abandoned the book and the author should be entitled to regain all his rights so he could find another publisher.

Typically, the clause was structured so that, if the book was out of print, the author had to give the publisher substantial notice so the publisher had time to contract with a printer to print several hundred or several thousand more books. Once having paid the printer, the publisher would be incented to get the books into bookstores and otherwise promote their sale. If the publisher didn’t get more books printed, rights would revert to the author.

What’s the Problem?

Print on demand and ebooks have radically changed the dynamics of keeping books available for purchase by readers. It costs the publisher nothing to keep an ebook listed on Amazon for months and years, regardless of whether it sells any copies or not. When Amazon sells an ebook, the publisher doesn’t have to worry about reprinting another for Amazon to sell. The purpose behind the original clause – to force the publisher to put more financial skin in the game to avoid contract termination is gone.

An additional problem is all the different ways a publisher can prevent the exercise of out of print rights and the complex and time consuming hoops the author must leap through on the way to enforcing an out of print clause.

What does it look like? (sample language)

A Work subject to this Agreement shall be deemed out of print if no Print Edition or Electronic Version is available for purchase or paid access in the U.S.; however, if only an Electronic Version is available for purchase or paid access, and in any 12-month period (measured from the beginning of an accounting period) fewer than 100 units of the Work have been sold, or the Work has generated less than $100 in revenues for Author, the Work shall be deemed out of print. If the Work is out of print and Publisher receives from Author a written request for reversion of the Rights, Publisher shall within 120 days of Publisher’s receipt of such request either: revert the Rights to Author in writing, confirm that it will make a full-length Print Edition available for purchase or paid access within 180 days from the date of such receipt, or a full-length Electronic Version available for purchase or paid access within 180 days from the date of such receipt if no digital master copy of the Work exists at the time of notice,or within 90 days following the date of such receipt if one does, it being agreed, however, that the Rights will automatically revert to Author if Publisher then fails to do either within such time period; or enter a license providing for the publication of a Licensed Version in the U.S. within one year from the date of the license.or enter a license providing for the publication of a Licensed Version in the U.S. within one year from the date of the license.

Got that? Note all the ways the publisher can avoid the out of print provision. If the publisher avoids the out of print provision one time, the author has to begin the whole process again if the book goes out of print again.

How do I fix it?

Tie the out of print provision to dollars paid to the author and limit the ways the publisher can prevent the book from going out of print to payment of dollars to the author.

If a book starts into the out of print process once, double the payments to the author if the publisher wants to avoid the book going out of print the second time.

Don’t require any notice from the author of an out of print status. If out of print is triggered by a royalty payment of less than $1,000 to the author, a clock automatically starts ticking at the point the royalty is due. If the publisher doesn’t cover the underpayment within 30 days, the book will automatically revert to the author.

Rationale for Change

As mentioned at the outset, over the long run, most authors won’t care how many books they sell, but will be much more interested in how much money they receive.

In an ebook era, it is easy to generate sales of 100 copies of an ebook at 99 cents each, but that won’t result in a meaningful royalty payment to the author. Merely having an ebook listed for sale is a ridiculously simple task for a publisher, so that’s meaningless as well.

The amount of cash received by the author from the publisher is a simple number to track and not subject to multiple interpretations.

Special Note

I have not seen a provision for an adjustment for future inflation in any publishing agreement I have examined.

In the US and other advanced Western nations, we have experienced an unusually long period during which Western economies, as a whole, have not experienced material amounts of inflation.

During a 100+ year publishing contract, periods of significant inflation are almost certain to occur.

2 thoughts on “The Nine Worst Provisions in Your Publishing Contract – Part 2”

  1. This is very similar to what I’ve been recommending/negotiating from for a couple of decades. There’s one difference, though: I tie the dollar amount to “each of two consecutive royalty reporting periods that begin not less than thirty months after the first publication by Publisher in any edition.” This covers Publisher-blameless supply-chain disruptions… and, not incidentally, Publisher-blameless failures by subrights holders or subordinate distributors (e.g., book clubs, and no, Simon and Schuster, I wasn’t thinking specifically of you but thank you for asking). When I first started pushing these clauses in the 1990s, both of these were significant problems; they are, perhaps, less so now but could easily recur.

    I also recommended building in the thirty-six-months-minimum-in-print period (thirty months plus six months of the reporting period) based on other distribution-chain upheavals. But this was before even the Crown Books bankruptcy… and remembering that a substantial proportion of my client base was writing “serious nonfiction” rather than purely trade anything. That frequently resulted in books that had substantial academic markets having two-year sales cycles, together with adoption delays. Too, this gave everyone (including the author) a chance to build a market for books in categories that — unlike trade — do not have months-before-publication review systems in place!

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