REVERSIONARY RIGHTS IN BOOK CONTRACTS

IVAN HOFFMAN, B.A., J.D.


The 5 most painful words in the universe are not: "I don't love you anymore."

The 5 most painful words in the universe are: "Your book's out of print."

Let's suppose that the love affair between publisher and author is over. The book has stopped selling, if indeed it ever did. The publisher has had its way with the book and is now done with it. Like lovers in other situations, the publisher only wants OUT. What happens now?

Depending upon the terms of the agreement between author and publisher, the author may have the right to reacquire the rights to the book along with any copies of the book then in existence. If, on the other hand, the author made an outright grant of all rights without reserving these reacquisition rights, the author may not have the contractual right to reacquire those books. There may exist a statutory right of termination of a transfer that is provided in the Copyright Act, as amended. It is complicated in its operation and you should consult with an attorney if you feel this is your situation. It is, however, not something I wish to cover in this article.

Assuming that there is some contractual right of reacquisition, there are a number of issues that present themselves at this point, some of which may be resolved by the contract and some may not. Usually, these issues are kicked off when the publisher declares the book to be "out of print." At that time, there is usually some window of time during which the author must exercise her or his rights to reacquire the book and the rights in that book. If the author fails to exercise such rights, the publisher may then sell any remaining inventory to a remainder dealer, someone who buys the out of print books and then finds a cheap market to dispose of that inventory. The author may or may not be entitled to receive a royalty on such remainder sales. It depends upon the contractual provisions.

If not covered in specifics by the publishing agreement, the author and publisher should, in their discussions, reach agreement on the following provisions:

The Cost of Reacquisition.

The Reversion of the Copyright. Representations and Warranties. Who Owns the Cover and Other Art? A List of Any Back Orders. A List of All Outstanding Third Party Licenses. Continuation of Obligation.

CONCLUSION

These are some but not all of the open and negotiable items to be covered when the parties stop working together as publisher and author. Care should be paid to each of these issues from both parties' standpoint since both parties stand to win and lose from the transaction.

Under any circumstances however, the author ought not to mistake "Your book's out of print" for "I don't love you anymore." They do not mean the same thing.

© 1996 Ivan Hoffman

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This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.


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