Thursday, 16 September 2010

How to read a publishing contract (24)

The end is nigh - think I'll put that on a board and walk up and down Oxford Street. Oh, it's been done already. Today's clause is about ends - the end of the contract. And we're near the end of the contract series, too. Phew.

24. Termination of Contract

Should the Publishers (save with the Author's consent) at anytime by themselves or anyone acting on their behalf wilfully fail to fulfil or comply with any of the provisions of this Agreement within 1 (one) month after written notice from the Author to rectify such failure, or should the Publishers go into liquidation, other than voluntary liquidation for purposes of reconstruction, this Agreement shall thereupon determine and the Author shall be free to license any other person to print and publish the Work, without prejudice to the rights of the Publishers and any third party in respect of any agreement properly entered into by the Publishers hereunder with any such party.

OK, this looks hard, but don't panic.

Should the Publishers ... wilfully fail to fulfil or comply with any of the provisions of this Agreement - essentially, this means 'if we don't publish your book'. The key word is wilfully. If they just can't be arsed to publish the book, if they prevaricate and faff about and publish other books that they think might sell better, you can give them notice (ie tell the to stop faffing about and publish it). If they don't do something about it within a month you can terminate the agreement. Don't expect printed books in a month, but a scheduled publication date, perhaps even some PDFs to check might be realistic. If the failure is not wilful - if they have no money, if they have been closed down by a flu pandemic, if the printer has screwed up, if the editorial assistant has absconded with the files - you have to let them get their house in order. What are the chances of a publisher admitting it has wilfully failed to publish your book? Quite.

If the publisher goes into liquidation the contract is over. That's good. But it can't be voluntary liquidation. That's not so good, as there are (some, small) publishers that make a habit of going into voluntary liquidation every so often to clear out all those pesky debts and dodgy commissions. They seem to treat it as a kind of colonic irrigation, to be repeated every couple of years when they can feel all those bad debts and dud books beginning to clog up their corporate gut. You won't be able to fish your book out of the nasty slurry that comes out of this exercise. Yuk. You probably don't want to touch it anyway.

determine = terminate. No, I don't know why they don't just say 'end' or 'terminate'. Maybe someone else knows?

So if they go bust or fuck up on purpose you get the book back and you can sell it to someone else. Yippee!

This clause is rather brief. You will often also find here a reference to the work going out of print and the rights reverting (returning) to you in that case. Usually, if the publisher doesn't produce or plan a reprint within a certain specified interval you can tell them to produce one. If they don't, you get the book back and can publish it with someone else, or self-publish it, or put it on a website, or whatever you like. This is called reversion of rights - all rights in the work return to you, like homing pigeons. (This is not generally the case with flat-fee books which were considered work for hire. You've sold all the rights, not licensed them, so you don't get them back.) Even so, it's not easy to re-sell a book that has been previously published and gone out of print; don't hold your breath. You might just want to stick the pigeons back in their loft and leave them there.


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