On the QT | The Official Newsletter of GWA September - October 2017 | Page 8

G WA M E M B E R B E N E F I T S
B Y J O H N W. H A Z A R D, J R .
Publishing Contracts: Issues
and Guidance – PART 2
Editor’s note: In the June-July 2017 issue of On
the QT, John Hazard covered items 1 through 3:
Contract language, copyright and payment. In this
issue, he explores out of print clauses, length of con-
tract, indemnification and dealing with publishers.
4. Out of print
clauses.
These clauses are
usually placed in a
contract so that if the
publisher is actually
no longer publishing
a book, the author
may purchase the
publisher’s printing
plates or software in order to, perhaps, repub-
lish the book or to find another publisher. The
clause usually also provides that if a book is out
of print, the copyright or licensing rights to the
book will revert to the author.
In most contracts that have been drafted by
the publisher, the out of print clause is vaguely
worded, so that it is difficult, sometimes im-
possible, to tell if the book is really out of print.
Publishers want to have unfettered discretion
in determining if a work will remain in the com-
pany. When negotiating a loan at the bank, for
instance, it is better if a publisher can say it has
50 books in its house instead of 40.
The out of print clause can apply to both
written and electronic versions of the book. I
recommend that authors attempt to include a
clear and no-uncertain-terms out of print clause
in publishing contracts, as follows:
“If at any time the Work is out of print, all
rights in the Work, as given to Publisher by
Author under this Agreement, will revert to the
Author and Author shall become the full owner
thereof. If at any time the Work is out of print,
Author may, for five hundred dollars ($500.00),
or a fee reasonably agreed upon between Pub-
lisher and Author, purchase the printing plates
to the Work.
“For purposes of this section of the Agree-
ment, the Work shall be deemed out of print
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at any time in which Publisher does not ship at
least twenty five (25) paper or electronic copies
of the Work in any quarter of any year to book
stores or other places of sale, or in any period
in which royalties paid to Author are equal to
or less than (for example,) five hundred dollars
($500.00). Publisher shall supply shipping
figures to Author upon request. If at any time
one of the above events occurs, Author shall
have the right to declare the book out of print,
in which case, the rights accorded to Author
under this Agreement shall become enforce-
able and Publisher shall revert all copyrights,
copyright licenses, and any attendant rights in
the Work to Author.”
5. Term of the contract.
It is important for an author to understand
how long the contract will continue. Does it go
for the life of a copyright? Does it go for one or
two years, as in the case of some newspaper
column contracts? Also, does the contract
contain a termination clause and is it favorable
to the author?
The best termination clause allows the
author to walk away from the project and
retain ownership of his copyrighted work. This
happens if, for example, a book is in the process
of being written, but the author and publisher
find it impossible to work with each other. In
such a case the author will not want to allow the
copyrighted work to remain with the publisher.
6. Indemnification clauses.
Read any indemnification clause carefully
because you do not want to end up indemnify-
ing a publisher for everything and anything. It
is perfectly reasonable for a publisher to ask an
author to guarantee that his or her work is that
it’s original to the author and contains no copied
material (unless by way of permission, etc.).
However, there is no point in an author in-
demnifying a publisher for things that are simply
beyond the author’s control. For example, it is
dangerous for the author to indemnify the pub-
lisher in a case where, for example, the photos
it selected and used turn out to be stolen or are
not the subject of an authorized license
7. Difficult Publishers.
“Sure we’ll be happy to look at the contract
changes you’ve suggested but I gotta tell ya,
we very rarely agree to any changes ‘cuz we
gotta run ‘em by the people in corporate…” This
response to an author’s questions about con-
tract edits, amendments and other changes is