Posted on

How to part with your publisher when your textbook goes out of print

During the 2017 TAA Conference session, “Wanna Get Away? Maybe Now You Can: Parting with Your Publisher,” intellectual property attorney Stephen E. Gillen, a partner at Wood, Herron & Evans, said that one event that can open the door to parting with your publisher is when your textbook goes out of print.

When and how your textbook goes out of print is governed by your contract, said Gillen, which means it’s best to think about these situations in the early stages of negotiating your publishing contract. “They [your publisher] are probably going to be more inclined to make changes in that language in the beginning than they would be somewhere along the way,” he said.

The best case scenario would be that your publisher “agrees to keep the work supplied in commercially reasonable quantities and in printed and bound English-language form”, a situation which, said Gillen, “means maintaining an inventory of a print book, which is sort of your insurance that they are in fact going to pay attention to the book and try to sell it and get it out of their warehouse.” Although this is the best scenario, it is more likely to be the case, according to Gillen, that the publisher will let its inventory of your book dissipate and not tell you that it has decided not to reprint it, leaving you to find out on your own. “Sometimes that will be combined with a provision that says that as long as the publisher has one copy available in order to fill an order should we have one come in…that qualifies as keeping the book in print,” he said.

If you have discovered that your book has gone out of print, said Gillen, you can make a written demand to your publisher that your book must be reprinted. “The typical contract language can give them as much as 6 to 9 months to reflect on that request, and then they have to decide, and they don’t always have to tell you what they’ve decided,” he said. You can then make a second demand if the book is still not put back in print, seeking a reversion of the copyright back to you. “It then becomes the publisher’s obligation to execute a short form assignment, or a reversion document that you could record with the copyright office so that the public record chain of ownership is complete and that shows the rights have been transferred back to you,” he said.

The tricky part of reverting rights is the question of which rights are being reverted and what sorts of rights they are, said Gillen: “Sometimes publishers will expressly say that ‘the rights we are reverting are the rights to the manuscript you provided to us and not the rights to the book that has been published with all of the edits and third party photographs and third party additional material’.” This is tricky, too, he said, when you have written the book with a co-author. The question then becomes how rights are transferred between co-authors and what share of interest each author receives.

Learn two other events that can open the door to parting with your publisher. Watch Gillen’s entire session