Do “Print-on-Demand” Editions Keep a Book in Print Forever?

Q. Is a book out of print if it is available only in a POD (print-on-demand) edition?

A. Unfortunately, the answer to your question in large part depends on how “out of print” or “in print” is defined in your contract (assuming it is defined at all). Some contracts, even from 20 years ago, specify that the book will not be considered in print simply because of the publisher’s ability to reproduce single copies of the book. Others state that copies only have to be “available” or “offered for sale” which, if the literal words of the contract are to be given a contemporary meaning, may well be satisfied by the mere availability of a POD edition. (Discussions about the proper way to interpret certain language in old contracts in light of subsequent technological changes can easily mirror those between followers of Supreme Court Justices Scalia and Ginsburg about how to properly interpret the United States Constitution.)

I believe authors should be able to argue successfully, at least for many contracts signed in pre-electronic days, that neither publisher nor author ever intended that a book be considered in print solely because future technology made it possible to intermittently print single copies upon a customer’s request and that “out-of-print” clauses in those contracts should be construed that way. The argument should be even stronger when the contract also contains a clause stating that “all rights not granted to the publisher are reserved to the author.” A court could well differ, however. Authors whose publishers assert that a book is in print solely because of the availability of a POD edition should contact the Authors Guild Legal Service Department.

If your publisher is taking that position, emphasize to it that the section in virtually all publishing contracts giving the publisher 6-12 months to put the book back in print would be meaningless if a book could simply and quickly be put into print at minimal cost (and no risk) via POD. Also investigate whether the publisher has separately notified booksellers that the traditional editions of the book are out of print. Virtually all publishers do this, frequently by publishing a notice in Publishers Weekly, to advise booksellers that they have a limited time to return unsold copies for credit. Publishers will find it difficult to legitimately assert that your book is still in print when it has sent a notice to the book trade that it is out of print. You can check on the status of a publisher’s editions of your book in R. R. Bowker’s Books in Print, available in many libraries.

Note that, increasingly, publishing contracts now avoid “in print” definitions that relate to a book’s availability. They focus instead either on (i) the amount of royalties paid to an author during the most recent royalty period or two, or (ii) the number of copies of the book (regardless of format) sold during the last one or two royalty periods, in each case setting a specific dollar amount or number as the sole criterion. Whichever criterion is used, make sure that it relates only to English-language editions of the book sold in the United States (or the United States and Canada). If using one of the older versions of the clause (relating to the book’s availability, e.g.) in a new contract, however, make sure to have a sentence specifically stating that the book will not be considered in print solely because of the availability of e-book editions or because of POD or other technology enabling single copies of the book to be produced.

(Originally published in the Summer 2007 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s new book.

How Often Should Royalties Be Paid?

Q. Is there a commonly accepted schedule of royalty accounting and corresponding royalty payments? My publisher does its accounting only two times a year and sends that accounting and royalties to the author five months after the end of the reporting period.

A. Most trade publishers prepare author royalty statements twice yearly, for the January-June and July-December periods. Most academic publishers generally do their accounting only once a year, which is something that authors of those books should always seek to change to twice yearly when negotiating their contracts. A handful of very small publishers do accountings (and pay royalties) more frequently, some even monthly.

A twice a year accounting and payment schedule is generally considered fair by most publishers and authors. Similarly, sending the royalty statements and paying the required amounts three months after the end of each royalty period is relatively standard and considered reasonable by most publishers and authors. Not paying royalties until the fifth month after the end of the reporting period is outrageous and unfair to authors (and, disappointingly, standard practice for at least one major publisher). Holding an author’s money that long is simply a crass way for a publisher to, in effect, borrow money from an author at zero interest. Publishers that refuse to make royalty payments until 120 days or longer following the end of a reporting period should be embarrassed by the practice and pressured by adverse publicity to change that policy.

(Originally published in the Fall 2006 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s new book.