The rapid changes in book publishing have created a dilemma for many authors with a traditional publishing contract.
How should you interpret those contracts? How do you go about the thorny business issues related to managing your books that are in print? Finding out which books are not in print, and reverting rights to those books?
Let’s start with the basics.
If you have a traditional publishing contract, most of these contracts contain a license of print (and other) rights to these publishers for the term of copyright.
That means that the publishers have the right to maintain control of those books under those contracts for as long as copyright exists for them.
That is technically through the author’s life, plus 70 years after they die. But, this grant is subject to a key condition — the book must be ‘in print.’
There has always been some controversy about the meaning of ‘in print’ in a traditional publishing contract
Many contracts and many publishers would include their definition of ‘in print’ in their agreements or have a standard definition ‘in house’ they relied on to make decisions about these licenses.
Publishers have always wanted to hang on to the books covered by these agreements.
At times the definition of ‘in print’ included a license to a different publisher, like a book club or a mass market reprint publisher. That said, the most common understanding of ‘in print’ was that the print book was available for sale from the original publisher. This would normally mean that inventory existed in the publisher’s warehouse or under its control. Then if someone wanted to buy that book, the publisher could make that sale.
If no inventory existed for that book, or if the publisher could not sell that book to a customer, then that book was ‘out of print.’
That original grant for term of copyright was conditional on the publisher having the book for sale in the marketplace. It was not a permanent license. If it was, then the copyright would be meaningless. In a sense, the copyright would have been transferred to the publisher.
New definition of “out of print”
And then the internet, eBook, and print-on-demand edition were born.
This burst of technology has utterly upended traditional publishing. It has also completely changed our understanding of the humble ‘out of print’ clause.
Ebooks are available as digital files, meaning they technically never go out of print. They are always available for sale, night or day, from every digital platform and device on earth.
The print on demand edition has also altered our understanding of ‘in print’ because with print on demand you can get an actual print copy of the book. This means that any definition based on a supposed firm line between eBook and print books is meaningless.
No inventory in the warehouse? The publisher can have 100 copies printed overnight and shipped the next day.
Publishers have adjusted to this new reality, for the most part with good will, though there is quite a bit of variation regarding the actual definitions and protocols in place. The new ‘in print’ definitions take into account this new technological world.
Keep the “in print” definition fair under a traditional publishing contract
There are two main approaches to keeping the ‘in print’ definition a fair and viable metric for the publishers right to retain control of a book under a traditional contract.
One approach conditions the publisher’s rights retention based on the number of units sold of a book.
Often this definition will include all formats that the publisher controls. It tries to be a measure of the publisher’s commercial success with a book with the understanding that if the publisher is selling at least X copies, it should retain its right to keep the contract. If it is failing to sell X copies, then the book would be deemed ‘out of print’ and therefore revertible by the Author.
These sales have to take place within a certain time period to be meaningful.
So a typical definition is that the publisher must sell 200 units in a six-month period, most often the period of time identical to a royalty period. I’ve seen clauses as low as 50 units.
I’ve seen clauses that require the period of sale to be a full year. A common variation is that this standard must be applied across two royalty periods. There are many variations, but this is the basis of a definition that should be applied rigorously.
If a book does not meet a definition based on the number of sales over a certain period of time, then that book is out of print and the rights should be reverted to the Author.
There is another approach to this issue.
- This approach is not based on the number of units sold but on the actual monies earned.
- This creates a similar metric in the sense that it is monitoring the income generated by the agreement.
- If the publisher is generating enough income under the contract, it should retain the rights.
- The dollar amounts can be as low as $50 or as high as $200. If it is not, then it shouldn’t retain the rights.
It’s important to note that this definition may be more expansive and perhaps more in favor of a publisher who wants to retain rights. That’s because this definition would include subsidiary rights income, perhaps translation or book club or audio income, existing licenses that the publisher is sharing with the Author, but the publisher isn’t selling units of the book.
The validity of both these approaches is debatable. It often comes down to the exact provisions and how they are applied.
This brings us to the essence of the dilemma.
What should an author do who has a traditional print contract and the ‘in print’ definition bears no resemblance to our current reality?
There is no easy answer and this is heavily dependent on the behavior of the publisher. If the publisher says:
- I have no inventory but I have an eBook and POD edition available for sale, the Author needs to ask if this is consistent with the original agreement and if this is fair.
- They have a few copies in inventory, this leaves the Author with the dilemma that while the book may be technically in print, the publisher may be neglecting its potential and frustrating the Author’s desire to see it re-published.
- They are applying their new house definition of ‘in print’ and the book is selling 200 units every six months, the Author can consider that response.
Sometimes the publisher will say the book is out of print and they are reverting rights back to the author.
The current state of an individual book and the author’s back list.
The ‘in print’ status of a book is really a subset of the current publishing health of the book.
Back list books are key foundations of an Author’s career. If the publisher is managing the back list, well this is of tremendous benefit to the Author and may well be impossible for the Author to duplicate.
Traditional print publishers not only maintain inventory, they have thousands of accounts all over the world they service, selling books on an ongoing basis.
The dilemma that authors face is that there are times when their books have little or no inventory. They are not selling well, and play no part in a publisher’s efforts. Marketing has stopped. The cover hasn’t changed. The pricing is out of date. Key editions like eBook or audio don’t even exist. This is where the ‘in print’ status of book becomes key.
The Author would be far better off reverting these rights and re-publishing the book, perhaps in several formats.
Should an Author serve a publisher with a notice of reversion, they should also use that communication as an opportunity to check on the health of that book and their entire back list. The author should dialogue about what is best for both parties.
Publishers will, on occasion, revert a book that still meets the ‘in print’ standard if they agree they have no real plans for the book and the Author does.
There is another dilemma with a traditional publishing contract – subsidiary rights.
Authors with a traditional publishing contract need to think about their subsidiary rights. Does the publisher retain control of subsidiary rights that have not been exploited at all, or have stopped producing revenue?
This could be format based. It took a while for many publishers to publish the eBook edition of many books.
An Author may feel that a hardcover edition will sell, but the publisher does not.
Translation rights also represent a potentially thorny area.
If the publisher does control all translation rights and has stopped trying to license them, authors may be missing out on dozens of revenue streams. An Author may feel that he/she can do better.
Will publishers agree to revert unsold subsidiary rights? This is a real concern of Authors and something that bears watching.
Authors should know how their books are selling and what the state of their back list is. They should manage their expectations but insist on some minimum level of effort, whether its key formats in print or some occasional marketing. Ebooks are particularly easy to market through price promotions if the publisher undertakes that step.
Should an Author feel that it is in his/her best interest to revert a book, then they should make the case for reversion under the reversion clause of the original publishing agreement, properly updated with the publishing house’s current protocol.
The new world of publishing has created more burdens, but there are also new opportunities.
Authors are going to have to navigate this new world.
I hope this article contributes to your understanding of your book publishing agreements and your career options and goals.