Welcome, all you brilliant beings out there, to the penultimate post in our publishing contracts series!
Next time I’ll write up a summary of these posts and mention a few things to remember for your own contracts, but for now let’s talk about how you can possibly get out of a contract!
As always we have time for the ritual of the disclaimer before the post takes hold: these posts reflect my own experience with contracts and are intended for guidance and informational purposes only. They should not be taken as iron-clad advice for all publishing contracts and if in doubt you should seek specific advice. There are organisations, like the Society of Authors in the UK, who will be able to help with this and if you have an agent they should also be able to help.
Now that the ritual is complete, let’s make a start!
It might sound counter-intuitive to figure out how to get out of a contract before you’ve even signed one, but it’s an important thing to know. For example your publisher might not be promoting your books anymore and aren’t selling any of your books, so you would need to know how to contractually cancel or revert the contract.
Let’s get the big one out of the way: termination due to a failure to comply with the obligations of the contract. In essence this is you being able to cancel because of a breach of contract.
If either party in the contract, so this could be you or your publisher, doesn’t do something that the contract says they need to do (this could be deliver the book on time, or publish the book on when they were supposed to, or pay royalties) then there should be wording that tells you how to cancel the contract because of it. Usually this amounts to giving a window of time for this breach to be rectified (which is most often thirty days) or else the contract is terminated.
Be sure to check your contract for this kind of wording as without it there might not be any way for you to cancel the contract even if your publisher does nothing with your book. Don’t worry though this wording should be in a contract with any reputable publisher (most certainly any of the big ones), just be sure to check.
Here’s a brief example clause so you can see what I mean:
This Agreement shall be deemed terminated if:
(i) The Publishers fail to fulfil or comply with any material provision of this Agreement within one month, being thirty (30) days, from notification from Author of such failure;
(ii) the Publishers go into liquidation or are otherwise dissolved (otherwise than a voluntary liquidation for the purpose of reconstruction).
You can see that if the publishers fail to do something that they are contractually obligated to do this gives you a way to either force them to get a move on and do it (within 30 days) or to cancel the contract.
I want to take a moment to reassure you, though, that your publisher probably won’t jump straight to this 30 day termination window if you don’t send in the manuscript on time. They’ll probably send you a reminder email first and ask when you will be able to send it. As we talked about in Author Responsibilities remember that your publishers are people and life sometimes gets in the way for all of us. If you’re worried about missing a deadline and that your publisher will cancel the contract, I’d suggest you first send them an email apologising and explaining the situation. People work in publishing for the love of books so they’ll want to make sure your book is the best it can be and will likely be happy to wait another couple of weeks for you to deliver.
Let’s say you want to give the thirty days notice to your publisher that they’ve failed to do something. Well, what constitutes giving notice? That is a very good question! It should be sufficient to send a notice in writing, whether that’s by letter or by email, but keep a look out in your contract as you may have a clause called ‘Notices’ which will lay out in detail how exactly you need to give notice:
Notices to be given by one party to the other under this Agreement must be in writing and sent by first-class post (by airmail, if available) or delivered personally to the address given in this Agreement for the addressee. Notices will be considered to have been received by the addressee at the time of delivery if delivered personally during the addressee’s normal working hours. Otherwise, notices will be considered to have been received at 9am on the next working day following personal delivery or at 9am on the second working day following posting in the same territory as that in which the addressee resides or at 9am on the seventh working day following posting outside the territory in which the addressee resides.
You should make sure that you read this clause carefully long before you might need it, just in case there’s something strange included in there – for example that you have to give notice to the publisher and they’re legal counsel – you don’t want this to trip you up as you’re getting ready to send out notice. Some contracts also specify that notice can be given via email if the email has read receipt turned on, so if you’re worried about the cost of postage or your notice getting lost in the post, then it’s worth seeing if your publishers will add in some wording to that effect.
Out of Print
Here’s one you might already be familiar with. At a glance you might think that this just means when the print version of the book isn’t available in bookshops anymore, after all it says out of ‘print’, right? Well, not exactly. With the rise of sales in electronic formats – whether in ebook or audiobook download – the way to define ‘out of print’ has shifted slightly. In old contracts (and I’m talking decades old here) it might simply say that a book is out of print if it’s not available for sale, but now that we have ebooks (which will always be available for sale once they’re out in the world) this doesn’t quite cut it anymore.
You should have a clause talking about your book being out of print and what happens if it is. This is where we need to look to see exactly how ‘out of print’ is defined. Here’s an example clause:
Out of print
If the Work shall become out of print then the Author may give notice in writing within six (6) weeks to the Publishers to reprint and reissue the Work within six (6) months. The Work shall be deemed out of print when sales aggregated over two royalty periods, before taking into account any returns, amount to fewer than 200 copies in all formats. In the event of the Publishers’ failure to do so, all the Publishers’ rights in the Work shall terminate without prejudice to all rights of the Publishers and any third party in respect of any agreement previously entered into by the Publishers hereunder with any such party and without prejudice to any moneys already paid or then due to the Author from the Publishers.
With the above clause you can see that the threshold for the book being out of print is selling ‘200 copies in all formats’ over ‘two royalty periods’. For the part that says ‘in all formats’ this is nice and straight forward and means that they will take the aggregate sales across all print, ebook or audio sales that the publishers make of the book. To see how long the publisher has to meet those sales you will need to cross-reference this and check how long a royalty period is (most often it’s six months) so with this clause you’d only need to sell 200 copies over a whole year for the book to still be considered ‘in print’.
For example, if you’ve sold 45 print copies, 20 audiobooks, and 150 ebook copies then it will all add up to 215 copies sold and be considered ‘in print’. If the book is in print and you want your rights back then – according to this clause – the publisher isn’t contractually obliged to give you your rights back. This isn’t to say that they won’t, but as per the wording of your contract they don’t have to.
You may also have noticed the wording up there that says the publisher can reissue the book and they get to keep the work. This is fairly standard wording and it will usually only come into play if it’s something that your publisher has been thinking about doing anyway, say if there’s an anniversary coming up and they want to reissue the book. The reason they’ve got a few months to reissue the book is so that they can put the proper amount of effort into making the book look as beautiful as it did the first time it was released, rather than rushing out a reprint of an old edition that might not hold up anymore. Again, though, this isn’t something that they’re guaranteed to do. It’s more likely that they’ll let you have the rights back as it’s probably been long enough that the publishers are focused on their newer books and will be happy to see you take your rights back and see what you can do with them.
There’s a set time period in the clause that says the publishers have to let you know within 6 weeks whether they’re planning to reprint or not and it’s important to make sure you have some time limit here. If you don’t then they could potentially spend months and months deciding whether or not to reprint the book and keep the rights whereas if there’s a time limit on their decision then you can get moving with your plans for your book.
You can see why with this clause it’s important to make sure that the threshold for the book being out of print is defined and to specify what happens when the book is no longer considered in print. This is a good rule for every part of a contract: specificity over generalization.
And with that, we’ve finished up our Getting Out! post and we have reached the end of our chunky contract posts! We made it!
There will be one more (short) post which I’ll outline some conclusions and general guidelines to think about. I hope that you have found these posts helpful and feel free to bookmark http://www.alexsbradshaw.com/publishingcontracts for easy reference to all the posts.
Until next time: be well, be kind, and have fun!