Is 'out of print' running out of time?

Image - iStockphoto: tzahiV — Image – iStockphoto: tzahiV

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.