The 5 most painful words in the universe are: "Your book's out of print."

Let's suppose that the love affair between publisher and author is over. The book has stopped selling, if indeed it ever did. The publisher has had its way with the book and is now done with it. Like lovers in other situations, the publisher only wants OUT. What happens now?

Depending upon the terms of the agreement between author and publisher, the author may have the right to reacquire the rights to the book along with any copies of the book then in existence. If, on the other hand, the author made an outright grant of all rights without reserving these reacquisition rights, the author may not have the contractual right to reacquire those books. There may exist a statutory right of termination of a transfer that is provided in the Copyright Act, as amended. It is complicated in its operation and you should consult with an attorney if you feel this is your situation. It is, however, not something I wish to cover in this article.

Assuming that there is some contractual right of reacquisition, there are a number of issues that present themselves at this point, some of which may be resolved by the contract and some may not. Usually, these issues are kicked off when the publisher declares the book to be "out of print." At that time, there is usually some window of time during which the author must exercise her or his rights to reacquire the book and the rights in that book. If the author fails to exercise such rights, the publisher may then sell any remaining inventory to a remainder dealer, someone who buys the out of print books and then finds a cheap market to dispose of that inventory. The author may or may not be entitled to receive a royalty on such remainder sales. It depends upon the contractual provisions.

If not covered in specifics by the publishing agreement, the author and publisher should, in their discussions, reach agreement on the following provisions:

The Cost of Reacquisition.

• At what price? Usually the contract refers to something called the "cost of manufacture" as the purchase price. How is this defined? And exactly what is being reacquired? Is it merely the unsold inventory or is it the actual plates and other devices from which the book was printed?

• Was the book copyrighted when first published? And if so, in whose name? If in the name of the publisher, the parties should prepare an assignment of all rights from publisher to author and it should be registered. If the book was copyrighted in the name of the author, another version of this reversion of copyright should be prepared and registered.
• Keep in mind however, that a reversion of rights is not the same as a termination of the agreement.   There are often many provisions in a publishing agreement that have nothing whatsoever to do with which party owns the rights to a work and such provisions can remain in effect even though a publisher may revert the rights to the said work to the author.   Such provisions can include rights to the next book, restrictions on competition (i.e. what the author can or cannot do), warranties and indemnities, rights to revised editions, confidentiality provisions etc. etc.  Thus, provisions that merely provide that upon the happening of certain events, such as for example, a declaration of out of print, the rights to the work shall revert to the author, do not mean or even imply that the publisher is giving up its rights in the agreement.  If the intention of the parties is to terminate the agreement and all of the publisher's rights in the agreement if the book goes out of print, that has to be clearly specified.

• The transferring publisher must represent and warrant to the acquiring author that it has the right to enter into this agreement, meaning that the publisher still owns the rights to the work, including all the plates etc. One of the things that could have happened is that a publisher may have made some sort of assignment for the benefit of creditors at some earlier date and some trustee somewhere may actually own the material. Also, the publisher must positively state that there are no liens on the material, such as storage charges, bank liens (meaning that they have not been pledged as security for any loans) or anything else. If appropriate, a side letter from any warehouseman (called a bailee in legal terms) stating that although they have possession of the plates etc., all storage and other charges have been paid and there are no liens on the goods.

• This is related to the previous topic since a significant portion of the value of the book may lie in its cover and other art. The author should get a representation from the publisher that the publisher owns this art. Often what occurred at the time of publishing was that the publisher merely had a license to use the art as a cover or in the book as published but not otherwise, the balance of the rights remaining with the artist. This can create a marketing as well as a legal issue down the road for the acquiring author.

• Publishers may have some outstanding back orders for the book but not a sufficient amount, in their estimation, to have warranted reprinting the book. In such event, it may be valuable for the author to have this information so that the author may supply those customers and so get a running start on a reprint.

• This is a significant issue since, during the life of the book the publisher may have entered into one or more supplemental agreements for the book. These could be foreign deals, either for reprint or translation rights; book club deals; deals for merchandising or other non-book exploitation, to name but a few. Some of these deals may have a duration that extends beyond the term of the publishing deal that is now being terminated. Thus the parties must negotiate who now accedes to these deals. In other words, who gets the continued income from these deals? If the publisher remains as the recipient, the author must be certain to retain all rights to be paid on these continuing deals. If the author acquires all these rights, the licensees must all be notified.

• There must be a statement that the publisher will continue to pay any royalties that may have accrued prior to the discontinuance of sale. Don't forget that there are always goods in the pipeline.

Under any circumstances however, the author ought not to mistake "Your book's out of print" for "I don't love you anymore." They do not mean the same thing.

© 1996 Ivan Hoffman

This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.

No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.