How Out-of-Print Clauses Work in Book Publishing Contracts

Out-of-print clauses in book publishing contracts are the provisions that let an author reclaim their rights once a book stops performing. They tie the publisher’s exclusive license to a measurable benchmark, usually a minimum royalty amount such as $150 or $300 per year, and when the book falls below it the author can demand the rights back. There is no federal statute that defines when a book is out of print; the contract language is the entire authority, which is why the exact wording of this clause controls everything that follows.¹

What Makes a Book Out of Print Under Your Contract

Modern publishing agreements generally use one of two measurable triggers. A royalty-based trigger treats the book as out of print if it earns less than a set dollar amount, commonly $150 or $300, over a full year (two consecutive royalty periods). A sales-based trigger does the same thing using unit counts, requiring the publisher to sell a minimum number of copies per year to keep the book under contract.¹

Which metric your contract uses matters. Royalty thresholds measure what the author actually earns. A sales threshold can be misleading, since a publisher might dump copies at steep discounts and technically meet a unit count while paying almost nothing in royalties. The Authors Guild specifically recommends royalty thresholds over sales thresholds for this reason.¹

How “royalties” are calculated also affects whether you can hit the threshold. Contracts that base royalties on the book’s list price produce higher per-unit earnings than contracts based on “net income,” meaning the amount the publisher actually receives after retailer discounts. An author whose contract uses net-income royalties will report lower earnings on the same number of sales, which can make it either easier or harder to trigger the clause depending on how it’s drafted. Vague definitions of “net” invite deductions that suppress reported earnings, so the specific wording down to that level controls whether you can initiate a reversion.

Why Ebooks and Print on Demand Complicated Things

Before digital publishing, out-of-print clauses were straightforward. A book went out of print when the publisher destroyed the printing plates or sold off the last warehouse copies. That changed when ebooks and print-on-demand technology made it possible to keep a book listed for sale indefinitely without the publisher spending anything on printing, warehousing, or distribution.

Some publishers responded by rewriting out-of-print clauses to say a book remained “in print” as long as it was available in any format, including an ebook file sitting on a server or a print-on-demand listing selling two copies a year. Under those clauses, a book could stay under contract forever with zero marketing effort and negligible sales, which effectively trapped the author.¹

Under pressure from literary agents and organizations like the Authors Guild, major publishers eventually agreed to add royalty or sales thresholds that apply regardless of format. Under those updated clauses, a book is out of print if it fails to meet the earnings benchmark whether it’s sold as a hardcover, paperback, ebook, or print-on-demand copy. Mere availability no longer counts. If your contract still uses older “available in any format” language, you should push to amend it with a performance threshold.¹

How to Request Rights Reversion

Before sending anything, gather the evidence that supports your claim. You need the original signed publishing agreement, the ISBN for every edition of the work, and your most recent royalty statements. The royalty statements are the core of your case. They show the exact number of copies sold and the total earnings during recent reporting periods. If those figures fall below the thresholds in your out-of-print clause, you have the factual basis for a demand.

Next, read the notice provision in your contract carefully. It will specify who receives formal communications, usually the publisher’s legal department rather than your editor, and the required delivery method. Your reversion request should reference the specific clause number that grants the right, state that the book has failed to meet the contractual performance benchmarks, and include the actual royalty figures from your statements as supporting evidence. Keep the tone businesslike. This is a contractual mechanism, not a dispute.

Send the notice by certified mail with return receipt requested so you have a verifiable record of when the publisher received it. That date matters because it starts the clock on the cure period. The Authors Guild provides demand letter templates to its members, which can help ensure you include all the required elements.¹

The Cure Period and What Happens Next

Once the publisher receives your notice, they typically have about six months to respond with either an intention to put the book back into print or a confirmation that rights will revert. That window is the cure period, the publisher’s last chance to keep the contract alive.¹

If the publisher says nothing and the cure period expires, the rights should revert automatically under a well-drafted contract. If the publisher responds by promising to bring the book back into print, they generally get up to a year from the original notice date to follow through. A publisher that makes the promise but doesn’t deliver within that window loses the rights anyway, and the reversion becomes automatic.¹

Contract language matters here. Some older agreements say reversion only happens if the publisher sends a confirmation letter. Under those terms, a publisher that simply ignores your notice could argue the reversion never took effect. If you’re stuck with a contract that requires publisher confirmation and you’re getting no response, you may need a publishing attorney to send a follow-up demand.

Even when automatic reversion applies, get a written confirmation or termination letter from the publisher if at all possible. You don’t legally need it for the reversion to be valid, but it simplifies life enormously when you try to republish. Platforms like Amazon may ask for documentation proving you hold the rights.¹

One boundary to keep in mind: a contractual reversion only returns the primary publishing rights you granted. Subsidiary licenses the publisher granted to third parties, such as foreign translations, audiobook deals, or film options, may continue running until those separate agreements expire on their own terms. Review each subsidiary contract individually to understand what reverted and what didn’t.

Recording the Reversion With the Copyright Office

Once you have a signed reversion letter or termination agreement, recording it with the U.S. Copyright Office creates a public record that you own the rights. Recording isn’t mandatory for the reversion to be legally effective, but it provides two significant benefits. First, it gives constructive notice, meaning anyone who searches Copyright Office records will see that the rights transferred back to you. Second, if there’s ever a conflicting claim to the copyright, the recorded document establishes priority.²

To record a document, it must bear the actual signature of the person who executed it, or be accompanied by a sworn certification that it’s a true copy of the signed original. The Copyright Office accepts both paper and electronic submissions. Current fees for recording a single document covering one work are $125 for paper filing and $95 for electronic filing.³ For the constructive notice benefit to apply, the work must already be registered with the Copyright Office and the document must identify the work clearly enough to appear in a title or registration number search.²

When Your Contract Has No Usable Clause

If your publishing contract has no out-of-print clause, or the clause is written in a way that makes reversion nearly impossible, federal copyright law gives you a separate, independent right to reclaim your copyright. Under 17 U.S.C. § 203, any author who transferred copyright on or after January 1, 1978 can terminate that transfer after 35 years, regardless of what the contract says. This right cannot be waived or contracted away.⁴

The termination window opens during a five-year period starting 35 years after the contract was signed. For grants covering publication rights specifically, the window starts 35 years after publication or 40 years after the contract was signed, whichever comes first. You must serve written notice to the publisher between two and ten years before your chosen termination date, and a copy of that notice must be recorded with the Copyright Office before the termination takes effect.⁴

Two limitations apply. First, statutory termination does not reach works made for hire. If your publishing contract characterizes your book as a work made for hire, uncommon in trade publishing but not unheard of for series books, packaged projects, or ghostwritten works, Section 203 won’t help you. Second, if the author has died, the termination right passes to heirs in a specific statutory order, and a majority of interest holders must agree to exercise it.⁴

Statutory termination is more complex than contractual reversion, with strict notice windows and formal recording requirements. The notice must comply with Copyright Office regulations for form, content, and manner of service, and must be recorded before the effective date as a condition of taking effect.⁵ Getting the timing wrong, even by a few weeks, can invalidate the termination entirely. Most authors use an attorney for this process. But the right itself is powerful precisely because it overrides any contract language that says otherwise.

A Note on Agent Commissions After Reversion

Authors who used a literary agent to place the original deal sometimes discover that their agency agreement contains language claiming a commission on any future sale of the work, even after the publishing contract has terminated and rights have reverted. These interminable agency clauses purport to make the agent the permanent representative of the book for the life of the copyright, which in the United States runs for the author’s lifetime plus 70 years.

Every major professional writers’ organization, including the Authors Guild, SFWA, and Novelists Inc., advises against accepting perpetual commission terms. The standard expectation is that an agent’s right to commissions should end when the specific contract the agent negotiated terminates. If the agent places the book in a new deal after reversion, a new commission is earned. If the author self-publishes or finds a new publisher independently, the original agent shouldn’t be entitled to a cut.

If your agency agreement already contains perpetual commission language, renegotiating it before you request reversion avoids a fight later. A reasonable compromise gives the agent a limited window, typically six months after the publishing contract terminates, to place the work with a new publisher and earn a commission on that new deal. After that window closes without a sale, the agent’s involvement ends.

1
The Authors Guild. Rights Reversion: The Importance of Negotiating and Exercising Out-of-Print Clauses
2
Office of the Law Revision Counsel. 17 U.S. Code 205 – Recordation of Transfers and Other Documents
3
U.S. Copyright Office. Fees
4
Office of the Law Revision Counsel. 17 U.S. Code 203 – Termination of Transfers and Licenses Granted by the Author
5
U.S. Copyright Office. Code of Federal Regulations 37CFR201.10