Out of Print Clauses

Many book publishing contracts include “out of print” or “reversion of rights” clauses. These allow an author to regain copyrights in works that the publisher is no longer exploiting. In most publishing contracts, the rights do not automatically revert; it is up to the author to demand that the publisher put the book back on sale, and if the publisher declines to do so within a specified period, the author gets the rights back.

Not all publishing contracts define “out of print” in the same way. For example, “out of print” can mean that the work is no longer printed (meaning in hardcopy) in English for sale through the standard channels (bookstores, the Internet, etc.). Or it can mean that the publisher is no longer offering it for sale. Or that the publisher is selling fewer than a specified number of copies over a specified time period.

Recently, at least one publisher has taken the position that a book never goes “out of print,” because digital media make it possible for publishers to make the book available on demand. So even if the publisher sells only one copy a year (or for that matter, no copies), the book would not be “out of print” because the publisher stands ready to make and send a copy to anyone who requests it. As you might expect, this is a very controversial position, and many authors contest it.

If your contract has an “out of print” clause, here are some points to look out for:

• Is the term “in print” clearly defined?
• Is there a minimum number of books that must be sold in order for the item to be considered “in print”?
• Are electronic versions of the work included in the definition?
• How much time does the publisher have to put the book back on sale if the author invokes the “out of print” clause?
• Can the author recapture some rights that the publisher is not exploiting (say to an electronic version of the work) even if the book is available in other formats?