Is your book out of print? – Know your rights

Photo courtesy of Photopin.com

Not so long ago Peepal Tree Press publisher, Jeremy Poynting, in an interview with Nicholas Laughlin, the editor of the Caribbean Review of Books, voiced his concern about the number of books by acclaimed Caribbean authors that have been allowed to go out of print.

At the time, he was explaining Peepal Tree Press’ rationale for launching a new Caribbean Modern Classics series (in 2009), aimed at returning to print “at least sixty” significant Caribbean titles from the 1950s to the 1980s.

Peepal Tree Press publisher, Jeremy Poynting

“I’d become increasingly conscious that many of the books I’d admired when I’d read them, sometimes over forty years ago, and the books that revealed what a hugely creative place the Caribbean psyche was, were out of print and destined to stay that way, and that more would follow,” said Poynting.

He added: “As a publisher and editor I’m very much in favour of contemporary writers being aware of where they’ve come from, and not have to invent the wheel (or pretend that they got there first). I felt that readers were being deprived of good books, and that societies need a sense of their recent past.”

Kassahun Checole, publisher of Africa World Press and Red Sea Press also noted that “publishers often let Third World books go quickly out of print.”

Poynting and Checole were articulating a problem that’s not unique to writers from the so-called ‘Third World’. The apparent and protracted unavailability of backlists from publishers no longer interested in exploiting their potential is a global malaise. But considering how incredibly difficult it is for writers from marginalized areas like the Caribbean to get published, allowing their work to go out of print and sink into oblivion, seems doubly egregious. Over the years the problem has been exacerbated by the increasing conglomeration of the global publishing industry, particularly in America, and by the big publishing houses’ manic obsession with netting ‘bestsellers’ and maximizing profits.

It’s going to get worse as printing, warehousing and distribution costs skyrocket and the numbers of brick-and-mortar bookstores decline. The problem will be further compounded as the industry is turned topsy-turvy by new digital and communication technologies which have already transformed production processes, distribution channels and consumption modes.

Just to give you an example – On Demand, the makers of the POD Espresso Book Machine recently announced new partnerships with Eastman Kodak and ReadersLink Distribution Services.

Espresso Book Machine

Under the deal, On Demand’s POD technology will be made available to retailers who currently have Kodak Picture Kiosks installed in 105,000 locations in the North America including supermarkets and drugstores.

ReaderLink is the largest full-service distributor of hardcover, trade and paperback books and they service many different types of retailers in North America, including mass merchants, warehouse clubs, department stores, drug stores, grocery stores and others.

According to Publishing Perpectives, On Demand CEO,Dane Neller said their arrangement with Kodak will “allow customers to create and print their own photo books in-store, as well as printing self-published titles and any of the 7 million titles currently available through their system.”

The writing is on the wall. One way or another, Caribbean writers are going to have to face up to the reality that getting published is cool, but ultimately it makes no sense, nor is it in their best interest to passively allow their rights to be tied up by a publisher who just sits on their books and makes no discernible effort to get them into the hands of readers – whether by exercising the primary rights they acquired or by licensing subsidiary rights to third parties.

 Publishlawyer.com offers some good advice. “Once a publisher no longer actively is marketing your book and the book has stopped selling in decent quantities, your best bet is to get the rights back and either resell the rights to a new publisher (difficult, but not impossible), self-publish the book (POD publishing is great for this), or cut it up and sell the serial rights to magazines or anthologies, or so on.”

Here’s an example of an out-of-print clause from Keepyourcopyrights.org that’s not untypical of publishing contracts.

16(a) In the event that the Work shall at any time be out of print, the Author may give notice thereof to the Publisher and in such event the Publisher shall declare within 60 days, in writing, whether it intends to keep the Work available for sale. The term “out of print” is defined as being unavailable in any of the formats specified [previously] in this Agreement.[These include, but are not limited to, hardcover, anthologies, book club editions, translations and motion picture rights.] If the Publisher declares its intention to return the book to print, it shall act not later than six (6) months from the date of such notice. If within 60 days the Publisher does not declare in writing that it intends to keep the Work available for sale, then this Agreement shall terminate and all rights granted hereunder shall revert to the Author by way of a written reversion letter, together with any existing property originally furnished by the Author.

Publishlawyer.com states further: “Some other variations of the [out-of-print] clause may state that a book is declared “out of print” if there are fewer than a certain number of books left in circulation, or if your royalties fall below a certain amount for one or more accounting periods, or if less than a certain number of e-books or POD books are sold in a year.”

However, there’s a catch. As many in the publishing industry have noted, POD and other forms of on-demand digital publishing have made the ‘out-of-print’ clause in publishing contracts out of date and virtually obsolete.

For example, let’s assume there are no print copies of your book available. If an e-book or POD version is still listed on Amazon or your publisher’s website, is it still considered available? Technically it is.

There have been several reports of publishers asserting that a book never really goes “out of print,” because POD and other forms of digital publishing allow them to make the books available to consumers on demand and indefinitely.

So in essence, if a copy of your book can be downloaded from the internet, or made available through print-on-demand, you would not be entitled to seek a reversion of rights – even if not a single copy of the book has been sold in years. That seems to be their argument.

Increasingly it’s a stance that is causing friction between publishers, writers and agents. As the Bookseller noted, “Publishers believe that the listing of a work in a catalogue and making it available on websites ensures they are taking the steps to make the work available that the traditional out-of-print clause tried to ensure, whereas authors and agents believe that rights should revert if a minimum sales level is not achieved.”

One agent alleged that all the big corporate publishers are, “to a greater or lesser extent, trying to hang on to rights in perpetuity.”

What’s more, some writers’ contracts reportedly don’t even have ‘out-of-print’ clauses that stipulate that they will get there rights back if the publisher doesn’t exploit them after a certain period of time.

The bottom line? Trying to regain the rights to your work could be a nightmare – even a pipe dream. Unless, of course, you or your agent ensures that from the outset the term “In Print” is clearly defined in your contract and your rights are protected.

Here’s some advice from the Authors Guild to writers published in the US. “Stipulate that your work is in print only when copies are available for sale in the United States in an English language hardcover or paperback edition issued by the publisher and listed in its catalog. Otherwise, your book should be considered out-of-print and all rights should revert to you.

And during your negotiations: “Don’t allow the existence of electronic and print-on-demand editions to render your book in print. Alternatively, establish a floor above which a certain amount of royalties must be earned or copies must be sold during each accounting period for your book to be considered in print. Once sales or earnings fall below this floor, your book should be deemed out-of-print and rights should revert to you.”

Here are some related articles you may find helpful:

How to Read a Publishing Agreement – David Koehser, Attorney At Law

Improving Your Book Contract – The Authors Guild

The importance of Reversion Clauses – Victoria Strauss

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6 responses to “Is your book out of print? – Know your rights

  1. Two things jumped out at me – ‘the big publishing houses’ manic obsession with netting ‘bestsellers’ and maximizing profits.’ and the paragraph beginning ‘the writing is on the wall … ” I congratulate Jeremy on republishing ‘out of print’ Caribbean titles. I presume the rights have reverted to the author for these titles.

  2. On Helen Williams’ question: yes, rights had reverted, either to surviving authors or to their estates, though there are several books Peepal Tree wants to include in the Classics series where we haven’t managed to track down estates/literary executors. In most cases previous publishers have been helpful; many searches end up at Harper Collins who bought up many of the independents of the 50s-70s who were the original publishers. The one exception is Faber who still hold onto the rights of John Hearne’s books despite most being out of print 40 years, despite the family’s request that the rights be returned.

    On the other issue of when books go out of print, the issue of POD is a serious one for authors, and we’d always be ready to return rights if authors really wanted them at the point where sales had virtually petered out and stocks were low. We do try to keep books in print and revive titles, but the sad reality is that as far as bookshops go, the life of all but regular good sellers is pretty short. We are looking to see if e-publishing will give some earlier titles another life.

    • Mr. Poynting, thanks so much for taking the time to respond to Helen Williams’ comment.

      As a reader of Caribbean novels published by Peepal Tree Press, I appreciate the work you are doing in bringing back Caribbean Classics that were previously out-of-print.

  3. Pingback: Reading Room lV | Wadadli Pen·

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