Is 'out of print' running out of time?

Is 'out of print' running out of time?

Never being 'out of print' is not good news

You can't self-publish. Because you can't get your rights back. And your book is nowhere to be seen.

Kill the entire outmoded concept of “out of print.” Instead, the contract should define when book rights are being “inadequately exploited” and therefore available for reversion to the author when the book fails to generate a certain amount of income—say, $250–$500—in a one-year period. Using income as the yardstick, not a specific number of sales, is essential: Publishers might otherwise be able to game the clause by offering one-cent e-books the way they’ve gamed existing clauses by using e-books and print-on-demand.

To a layman's ear, it sounds great: Digital means never having to say you're "out of print," right? Ebooks are forever. Great. 

No, not so great. Not if the rights to produce your book and sell it are held by a company that's not doing anything commercially worthwhile with it -- and not letting you do the job, yourself, as a self-publisher, either.

In its series of white papers on publishing contract reform, the Authors Guild — led by executive director Mary Rasenberger (pictured) — is holding up the concepts of reversion-of-rights clauses and "out of print" as particularly onerous to authors. In A Publishing Contract Should Not Be Forever, the Guild writes:

Publishers have cleverly managed to craft “out of print” clauses that make it almost impossible for authors to recapture their rights.

In comments on that article — yes, the Authors Guild's administration now allows comments — you'll find the author Harry Bingham engaging with the material. It's Bingham whose Do You Love Your Publisher? #authorsay survey with Jane Friedman saw its results released in April exclusively by The Bookseller. Now, he writes to the Guild's points: 

The auto-reversion clause needs to be linked in some way to advance or projected sales. Plenty of bigger books launched by Big 5 type publishers will accumulate $250 of sales in a 6-month period simply by kicking around on Amazon, without any care and attention from the publisher at all. If the sales test were, say, 5% of total advance accrued in any six-month period, that would be a genuinely flexible and responsive test. So a book acquired for $50,000 would need to sell $2500 in any six-month period to stay above the reversion line. A book acquired for $1000 would need to sell just $50 worth.

...But wow. Great article. Great change of heart. Stay tough on those reversion limits though. The point is to force meaningful change, not look after publishers' income statements.

And here's the US author J.A. Konrath in those comments at Authors Guild, writing, "Kudos to the Authors Guild for blogging in support of authors, and finally having the courage to allow comments.

I specifically mentioned this contractual problem three years ago, and chided the AG for not doing anything about it, in a post on my blog called "Unconscionability".

Of course, being Konrath, his proud trademark — that chiding — may be the only thing that goes on longer than life-of-copyright:

And now I'll chide you again. 

See? But his points highlight how widespread the demand for contract reform is becoming. And Konrath's remarks are central to a newly empowered author base's understanding of its own obligations. He's clarifying that it is the job of the author corps, inclusive of the Guild, to address this and other contract reform needs as they see them. So it is that his impatience with the Guild reflects that of many and stands as part of this debate:

Authors have known that a publishing contract that lasts for a lifetime is bad, and we've known it for decades. Simply acknowledging that the cow has left the barn isn't enough.

To be worthy of the name "Authors Guild" you have to do more than state the obvious. You have to do something to help and protect authors. Coming to an obvious conclusion, years late, isn't progressive, and it isn't helpful. 

The author Barry Eisler has a similar take, in his own chorus of "where have you been?"

Not to be too uncharitable to the AG, and yeah, better late than never, but holy smokes, you’re only now getting around to even just *mentioning* these things? Forget about the fact that talking is as far as the Collective Voice of American Authors has ever had the courage to take things with legacy publishers… you’re only just now figuring out that forever is, you know, maybe a tad long for a licensing agreement to run?

The Guild is big enough to handle some carping about being late to address contract reforms.

And it's a long-standing tradition in the author camp to bash each other (in this case pounding the Guild for its late arrival on the battlefield) while riding into the fray together. What's important to recognise here is that this is a new level of interaction between the organisation and some of the leading self-publishing and hybrid-publishing players in the market. With comments now open on the Guild's site, a long strangled debate can go forward. That, in itself, is progress, even if the venerable scouts, the Eisler-Konrath wing, feel they need to slag the cavalry while saddling up.

'Book contracts are assets'

Robert Gottlieb's comment is telling:

The Guild raises many valuable points...

Why do publishers resist term contracts in the U.S.? Outside of the U.K. publishers do licenses rights from authors on a term basis. The funny thing is most American publishers are now owned by foreign entities.

The answer is that book contacts are assets for U.S. publishers. Author's books are on the ledgers of U.S. publishers as assets and their financial statements. Therefore their assets which are under contact can't leave them easily. That is why out of print clauses often include the work in print under licenses. So even if there is a $200 deal in a Baltic state the publisher will tell the author the book is still in print. Even though no physical and/or eBooks sell at a level that justifies the publisher holding on to the book rights. Any license gives the publisher the grounds to hold onto all rights if they wish.

This adds value to the corporation's worth.

On the same path: The Society of Authors' campaign for CREATOR contracts 

In the #UK, parallel evocations of the problem by the Society of Authors (SoA) are just as damning:

The ACLS study showed that 70 percent of authors who relied on a reversion clause went on to earn more money from the work in question.

That's the SoA's Nicola Solomon (pictured) in her address to the All party Writers Group Summer Reception last month. She's referring there to the SoA's call for government action on so-called "CREATOR" contracts. This is a legislative effort and, as Gottlieb is suggesting, it lies in the context of other cultures' existing law. Solomon:

These laws are not radical. They already exist throughout many European countries. These changes are easy and timely and we urge that they should be effected.

And in our #FutureChat today, we want to look at this element in particular of the digital dynamic:

Does "digital mean forever" -- because ebooks never disappear from shelves -- and does that, in turn, render "out of print," as we've known it, a moot concept for publishers and authors?


This article was written as the walkup to our #FutureChat of 14th August. Join us every Friday for #FutureChat live on Twitter at 4:00 p.m. London (BST), 3:00 p.m. GMT, 5:00 p.m. Rome (CEST), 11:00 a.m. New York (ET), 10:00 a.m. Chicago (CT), 9:00 a.m. Denver (MT), 8:00 a.m. Los Angeles (PT), 5:00 a.m. Honolulu (HAST).


That word "exploitation"

In her coverage of the Solomon comments, my colleague Charlotte Eyre at The Bookseller referred to Philip Pullman's (pictured) backing of the campaign for better contracts. She quoted Pullman saying:

The essential point is that the balance of fairness has tilted the wrong way, and it's often not only the work that's being exploited - its creators are too. It's time for that to stop.

In general, "exploitation of rights" is considered a positive thing. Rights are "exploited" in order to create revenue streams for writers or other artists. Audio rights, for example, are "exploited" in an audiobook so that money comes to the author and to the publisher and to the audiobook narrator and producer/platform from a book's manuscript. 

What the Authors Guild and Society of Authors are saying, however, in independent efforts at author contract reform in the US and UK respectively is that "exploitation" turns to a darker connotation when publishing arrangements are more beneficial to the house than to the artist, in this case the author.

The "E" in CREATOR for the SoA stands for: "An obligation of exploitation for each mode of exploitation, also known as the 'use it or lose it' clause."

And the Guild in the States sees "out of print" as a concept ripe for misuse and for just such opportunities of something not used to still be made to benefit the publishing house, not the author:

Classic contract language states that a book is not out of print as long as it is “available for sale in any edition.” So publishers “release” the book in a print-on-demand or electronic edition that’s always available, even if few copies are actually sold. By relying on language originally intended to provide a real reversionary right, a publisher can now hold onto a book forever even if it’s not actually doing anything with it. That is not how “out of print” was supposed to work.

This is one reason that Canelo Publishing in London has launched with a five-year cap on contracts, considered a gold standard by many authors. That means that the house doesn't hold the author's rights for the full term of copyright (life of the author plus 70 years) but for a comparatively short, purposefully limited time after which the contract's elements must be renewed -- or those rights revert to the author.

'Life of the author plus 70 years. That is ridiculous.'

This week, we've run the first of a series of five-minute Manifestos on the Future of the Book being sent to us ahead of December's FutureBook Conference (4th December at The Mermaid, details coming). 

The children's author Diana Kimpton, in her manifesto, writes:

Accept time-limited contracts.

Digital production means books never go out of print so rights never revert. That essentially leaves traditional contracts lasting for the full length of copyright: the life of the author plus 70 years. That is ridiculous. I doubt if any non-publishing contracts last that long.

And as the public venting of decades of frustration build on both sides of the Atlantic, so does pressure on the publishing world to finally stop, turn around, and look at this issue. The world's major author-advocacy groups aren't quieting down and these issues don't seem to be going away. 

If anything, a grassroots resistance is growing, as you can gather from Kimpton's commentary.

We have another example:

'Dear Author'

In a funny but sad bit of commentary on this, one author -- fighting to get the rights to her "out of print" book back so she can issue it, herself, as a self-published ebook -- writes a faux letter from her publisher. She has shared this joke with me on condition of anonymity while passing it around to author friends in similar straits. I'm excerpting it here to be sure her identity is protected:

Dear Author:

We regret that we are unable to revert the rights to your novel, as it as just been reissued as an ebook in Outer Uzbekistan in an anthology titled Romance Novels Whose Plots We've Forgotten.

It will be vulnerable to reversion in 2019, at which time we expect to republish it in microscopic print as the album liner notes to a newly discovered recording of the Polovetzian Dances as interpreted by Spike Jones. 

Sincerely, 

The Editors

This is, of course, not much of a laugh if you're an author whose books are tied up by a house that is not, in fact, actively selling and promoting commercially viable editions of your life's work, and yet they refuse you the right -- the reversion of rights, as it were -- to try to get those things back onto the market as resuscitated backlist titles for much-needed revenue.

The Guild writes:

As things stand now, if a book actually happens to go out of print, authors must typically figure that out on their own, notify the publisher, wait many months to see whether the publisher is willing to bring the book back onto the market, and, if not, try to get the publisher to relinquish the rights. 

And in London, Solomon talks of "the example of Catherine Gaskin, where the out-of-print titles have been reverted to the SoA and are now earning over £7,000 per year."

Self-publishing potential meets Old Publishing's constraints

Today in #FutureChat let's talk about what "out of print" means -- and doesn't -- in a digital age.

  • What can self-publishers do with their own material that traditionally published authors on these standard contracts can't?
  • Is the agenting community meaningfully addressing this problem?
  • Can the self-publishing sector -- which stands to gain many new converts among trad-authors if they are able to issue their own backlists -- able to help traditionally publishing authors in the reform effort?

The Guild's point:

Allowing an author to get the rights back when a book is “inadequately exploited” as proven by an unreached income floor, would put an end to this ludicrous time-killing dance. If the minimum income failed to arrive, the author could reclaim the rights.

Agree? Is it time to stop "this ludicrous time-killing dance"?

Don't be a wall flower. See you in #FutureChat.


Join us every Friday for #FutureChat live on Twitter at 4:00 p.m. London (BST), 3:00 p.m. GMT, 5:00 p.m. Rome (CEST), 11:00 a.m. New York (ET), 10:00 a.m. Chicago (CT), 9:00 a.m. Denver (MT), 8:00 a.m. Los Angeles (PT), 5:00 a.m. Honolulu (HAST).

Please remember that we're interested in having your manifesto for The Future of the Book Business. Your statement, preferably no more than 500 words, should be sent to Porter.Anderson@theBookseller.com by 31st August.

And mark your calendar for The FutureBook Conference, 4th December, The Mermaid, London. 

Main image - iStockphoto: Raw Pixel