Mark Terry

Wednesday, January 26, 2011

Book Contracts, Part 12 (Termination)

January 26, 2011
I think we're getting down more toward the less interesting clauses, but sometimes these can have little "gotchas" in them (which is probably why they're there).

10. Termination:

a. This Agreement shall terminate and all rights granted to Publisher hereunder shall revert to Author, except those covered by existing contracts and licenses with other third parties, in the event the Work is out of print in Publisher's edition, and Publisher fails to notify Author of Publisher's intention to reprint or publish a new edition of the Work within ninety (90) days of receipt of Author's written demand and if Publisher fails to reprint or publish a new edition within six (6) months after Author's demand. For purposes of this contract, "out of print" is defined as less than 50 print copies available for sale in the Publisher's warehouse.

I'm going to give this particular publishing company a lot of credit for actually saying what their definition of out of print is. The first time I was offered a book contract, for the now defunct Write Way Publishing, there was no definition of OOP and when I asked the publisher to put in a definition she snapped (snarled, is a more accurate description), "It's out of print when I say it's out of print." [And for those of you who wonder, sometimes, why I sometimes seem cynical about publishers, it's primarily because my personal experiences have been about 50/50 between those who are professional and those who are psychotic and/or incompetent].

Expect this clause to get significantly more problematic in the near-future, if it isn't already, as more and more of the market goes toward e-publishing. I'm not a believer that traditional publishers and paper books are on the way to extinction (exactly), but I think publishers, as larger chunks of their revenue come from e-books, are going to basically make Termination clauses in their contract that specify paper books versus e-books, and that they will hold on to e-book rights until hell freezes over, because they never go out of print.

b. Publisher covenants to produce a trade appropriate edition available for retail sales within 18 months following delivery by the Author of the complete manuscript. In the event of any delay from strikes, fires or other contingencies beyond the control of the Publisher or its suppliers, the publication date may be postponed until the spring or fall season immediately following the cessation of the cause of the delay. If Publisher fails to publish the book within the timeframe dictated above, the Author may terminate this agreement at his or her option. The author must demand, in writing, the return of the work. The Publisher must either publish the book within six months after receipt of said notice--in which case this agreement remains in full force and effect--or all rights revert to the Author, and this agreement shall be terminated.

Quite straightforward and reasonable, actually. Basically what this clause indicates is that once you sign the contract, the publisher agrees to publish the book within 18 months. If they have emergency contingencies like their offices getting burned down or flooded or UPS or their warehouse or printers go on strike, or presumably, a comet strikes the Earth's atmosphere and incinerates all trees, etc., the 18 months can be extended for a limited amount of time. If the publisher screwed up because they don't know how to stay on schedule and the 18 months goes by, the rights can revert to you and you can go find another publisher. The 18-month figure is probably typical, although I've had contracts that were about 2-1/2 years (Llewellyn) and the famously weird one with Write Way that was about 5 years. I wouldn't sign one like Write Way's now and probably shouldn't have then, but it was a learning experience.

11. Infringement: Publisher and Author shall jointly have the right to prosecute an infringement of the copyright in the Work. If the parties proceed jointly, the expenses and recovery, if any, shall be shared equally. If the parties do not proceed jointly, either party shall have the right to prosecute such action and the suing party shall bear all the expenses thereof and any recoveries shall belong to such party; and if the suing party shall not hold the record title of the copyright, the other party shall permit the action to be brought in his, her, or its name.

Seems straightforward. If someone plagiarizes or pirates your novel, either you or the publisher can sue them, jointly or separately. Whoever sues pays for the privilege and gets the money from the lawsuit. The only quirk is the last line, which means that, even though you as the author own the copyright, the publisher can still sue on your behalf (whether you want them to or not) and if they win, they get to keep the money. My guess is that this is fairly standard.


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