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Clause 17 to 19

This was actually very interesting (after I'd been around the blocks a few times), because this has the least restrictive boilerplate, or even haggled down, reversion clause I've ever seen.

Discontinuance of Publication

17. If the Publisher fails to keep the Work in print and the Author makes written demand for it to be reprinted, the Publisher shall, within sixty (60) days after receipt of such demand, notify the Author in writing if it intends to comply. Within six (6) months thereafter the Publisher may reprint or license reprint of the Work. If the Publisher fails to notify the Author within (60) days that it intends to comply or within six (6) months after such notification the Publisher fails to reprint or license reprint of the Work, unless prevented from doing so by circumstances beyond its control, then this agreement shall terminate without liability on the part of Publisher and all rights granted hereunder, except those deriving from the option in paragraph 16, shall revert to the Author, subject to licenses previously granted, provided the Author is not indebted to the Publisher for any sum owing to it under this agreement. After such reversion, the Publisher shall continue to participate to the extent set forth in this agreement in monies received from any license previously granted by it. Upon termination in accordance herewith, the Author shall have the right for thirty (30) days thereafter to acquire the plates or film, if any, as is and where is by payment of the sum of One Dollar ($1.00) per page.

Okay, this is a long clause, and the only one to be broken into two paragraphs. Most of the boilerplate clauses I've seen stipulate a period of years -- the standard is seven -- after the publication of the work. Which is to say "If, at any time after seven (7) years from the initial publication of the Work, the Publisher fails …". The timing on the notification in writing that the book will be reprinted is often different (90 days); the timing for the reprint is as long as 18 months. This isn't 7 years of not being in print, but seven years from the date of publication. Which can still be a bit on the irksome side.

I personally favour knocking this down as much as humanly possible.

In a market where reprints often have little value, why? Because they don't have zero value if, for some reason down the road, your books start an upward climb. Four years from the publication of your first novel, you may be presented in a way that will create some buzz, and the 4th novel may sell well. In this case -- although by no means always -- you can find yourself at an entirely different publisher. And if you want those books reprinted, and you've signed a 7 year reversion, the publisher that does have the rights may not have the financial incentive to back you.

I'm not talking about Dean Koontz upswing, fwiw. I'm talking about the jump from a low to a mid-high midlist author. If you're with your current publisher, for whom you're doing well, they might indeed reprint the books that previously failed because they've already got a stake in your career, and they own those books anyway. But if the previous publisher has them, and they don't look like they're going to make a lot of money, there's a much greater chance that they won't be reprinted. If you're wildly successful, otoh, whoever has the rights will probably reprint the book.

There was one author years ago whose first few books hadn't sold all that well; his later books were gathering some steam (slow) and the word of mouth had built a lot in three years. For about six months, every third damn question we got was "where can we find these books?" But they had come and gone in an eye-blink; they were out of print in less than year.

I asked the author about getting these either reprinted or moved to somewhere that would, and he said he couldn't get his books out of the publisher (I have no idea why they wouldn't release them; they had often released other books after less than the boilerplate period had passed, and without a fuss) and couldn't get them to reprint again; he was stuck waiting for the seven years to lapse.

I have no idea what he's doing now. But I think, had he had more support, he would have done really well.

If the Work is under contract for publication or available for sale in any edition in the United States, it shall be considered to be in print. A work shall not be deemed to be in print by reason of a license granted by the Publisher for reproduction of single copies of the work. If the Publisher should determine that there is not sufficient sale for the Work to enable it to continue its publication and sale profitably, the Publisher may dispose of the copies remaining on hand as it deems best, subject to the royalty provisions of sub-paragraph 10(f). In such event the Publisher may offer the opportunity to the Author, within two (2) weeks of the forwarding of a written notice from the Publisher, to a one-time purchase of any hardcover copies on hand at Publisher's estimated "remainder" price.

This is important as well because it defines what In Print or Out of Print means. I'm not in love with this clause at this point in time. I would define it differently. For one, at the time there really wasn't any POD technology; many contracts have a clause that either excludes that technology or specifies a minimum number per year that has to be sold (300 - 500).

Author's Property and Return of Manuscript

18. Publisher shall not be responsible for any loss or damage to the manuscript or related materials and the Author shall keep copies thereof for Author's own protection. Publisher will not be responsible for loss or damage to original artwork, photographs or similar material furnished by Author unless caused by Publisher's neglige4ence, and in such event Publisher shall be responsible only for the value thereof. It is agreed that the value of such material is not more than $25.00 per item, unless otherwise agreed in writing. In the absence of written request by the Author therefore, Publisher may dispose of the manuscript, any such material, and of proofs, six (6) months after publication.

This seems fairly straightforward. I'm not sure if you can get this clause changed or not -- I've occasionally had manuscripts sent back to me after the process was finished, but I don't find them entirely useful.

Suits for Infringement of Copyright

19. If the copyright of the Work is infringed, and if the parties proceed jointly, the expenses and recoveries, if any, shall be shared equally, and if they do not proceed jointly, either party shall have the right to prosecute such action, and such party shall bear the expenses thereof, and any recoveries shall belong to such party; and if such party shall not hold the record title of the copyright, the other party hereby consents that the action be brought in his or its name.

This also seems straightforward.


Sep. 25th, 2004 09:37 pm (UTC)
I suspect paragraph 18 was a lot more important in the days when carbon paper was the only way people could make copies before sending the manuscript off to the publisher. Between photocopiers and word processing, I sincerely hope that authors don't need the publisher to return things nearly as often (or at all).

I actually hadn't thought of that <wry g>. My first submission was written on a 512k Mac, so I had copies of it, and access to a laser printer; it was still cheaper to photocopy than to print at that time.

But I do remember, when I was pre-pubescent, sitting in front of one of the old models of IBM selectric and typing straight to paper.

If, otoh, I'd sent in original artwork for production purposes, I'd want that back -- I'm not sure if this was the contract used for picture books, for instance.

And, come to think, I'm not sure how artwork is now transferred between artist and publisher. I don't know if the artist can scan it in and send that (large) file, or if they still send the original painting. Given how many covers are now being done digitally, I'm assuming that there's some way of transferring them digitally.