Those of you who are writing, or ever dreamed of writing, go read my wife’s blog today about one of the very, very nasty problems of contracts these days. Even if you have no intention of every going with a traditional publisher, you might get a movie deal or an audio deal or a deal for translation rights with an overseas publisher. You need to know this stuff and the anti-competition clauses in contracts is not something you ever want to have your head in the sand on.
My suggestion for writers is simple (and honestly just silly). When a publisher wants to control your future books with an anti-compete clause, then tell them you’ll be glad to sign that if they don’t publish another book that will compete with yours in the same time period. So if they buy your sf book and they don’t want you to publish another sf book or story for two years, then tell them they can’t publish another sf book for two years either. (grin)
They won’t go for it, of course, since they are constantly going to publish books that compete with yours right alongside your book. But you will make a point about how stupid this clause is. And how fantastically dangerous. If they still insist on limiting your rights to publish what you want, WALK AWAY!
Go read Kris’s new post. Maybe read it twice. It’s that important.
http://kriswrites.com/2012/02/23/the-business-rusch-competition/
Dean,
Kris’s post was great, as usual, but I have one quibble. You guys keep saying to “WALK AWAY” from this. I disagree, I think one should RUN AWAY SCREAMING as fast as possible!
Just don’t burn bridges in the screaming, Robert. Never know who you will be working with again in a year or so at a company with better terms. (grin)
An IP Lawyer will catch that, right? If I say “No Non-Compete Clauses”? I read Passive Voice’s blog on this as well, and I know I should learn it myself too – I just want to know how easy this sort of foolishness is to spot for the professional eye.
I’ve only dealt with complicated international employment contracts, but that’s enough that I’ve become paranoid…which is probably good when dealing with contracts.
David, SOMETIMES IP lawyers catch this stuff, but your name is on the bottom, so you need to be paranoid I’m afraid and know where this is all hidden in contracts. That’s why Kris’s post needs to be printed out and saved for the next contract so that you know where to look and where to ask your attorney when you read the contract and boilerplate.
Or sometimes just kill ‘em with reasonableness.
Once I quit working with literary agents and started using a literary lawyer to negotiate my contractual clauses instead, I finally discovered what good negotiating skills can do. In the second deal I retained her to negotiate for me, for example, there was a clause which we didn’t like and which the publisher defined as a non-negotiable dealbreaker. Negotiations stalled over this for weeks. Both sides started thinking the deal might end over this. My lawyer didn’t get melodramatic, or make threats, or advise me to run away screaming, or make accusations, or do any of the things my various former agents had typically done (ex. ask once, then accept “no” as final and tell me to bend over; or (more often) refuse to try at ALL, because “publishers don’t like that;” etc.). My lawyer just kept working on the problem, courteously but persistently asking questions and proposing alternatives… until finally… it turned out this non-negotiable dealbreaker was, hey!, negotiable after all. And they made a big concession which they’d spent weeks saying they wouldn’t make.
So what ultimately happens with a non-compete clause when the publisher starts out resistant (or even obdurate) has a LOT to with the contractual knowledge and negotiating skill of your contract negotiator… and most agents (including agents with big reputations) tend not to be particularly knowledgable about contracts (certainly not to the extent that a lawyer is) and not particularly good at negotiating them.
What Laura said completely. You must use an IP attorney these days, even if you have an agent. Agents know nothing about this stuff and are not willing to negotiate for you because they basically work for their own agency (some of which are now publishers). And their interests lie in keeping a publishing company happy, not one author. So even if you feel you must have an agent, do not let them be on the contract negotiations in this modern world. Hire an IP lawyers who will be completely on your side in the critical areas.
I recall – although I can’t find it at the moment, I’m sure it’s in my copy of the Freelancer’s Guide somewhere – her article where she advised running down the contract line-by-line with a ruler and understanding everything (and asking “dumb” questions). I have used that advice (in non-publishing contracts), many a time.
Before, I was vaguely vigilant, now I’m hyper-vigilant. (That sounds better than “paranoid”, right?)
Romance author Dara Joy was sued by Dorchester when she published a book with another co because they said it broke the non-compete clause in their contract with her.
The lawsuit dragged on for 6 1/2 years before it was settled out of court in 2008. Neither side could discuss the terms. But even if she didn’t have to pay Dorchester anything, the legal fees had to be incredible after that long.
This was before self-pubbing really took off and no other trad publisher would touch her while this was going on so it really hurt her career.
I’ve come across this clause a couple of times, I’ve always managed to get it taken out. Authors, go through your contracts with a fine-toothed comb. Nasty stuff gets hidden in there!
I took a look at my old contracts and see that my trad publishers asked for eight weeks to consider the next book exclusively at which point they had to make a decision.
That seemed reasonable to me then, and although things didn’t work out when they listed my newest book in their catalogue and started pre-selling on Amazon before contract (heard of that one? Yeah!) that option clause still seems like a fair rewrite of the Horror Option Clause.
D.L., yeah, I agree, eight weeks tends to give them enough time if the eight weeks starts ticking not from PUBLICATION but from turn-in of the book under contract, or turn-in of the proposal. The nasty part of the clause isn’t how long you give them, but when that time starts ticking. If you limit yourself to weeks from publication and they take two years to publish, you have killed your writing. So eight weeks is standard and reasonable, depending on when the clock starts ticking.
Kelly wrote: “Romance author Dara Joy was sued by Dorchester when she published a book with another co because they said it broke the non-compete clause in their contract with her:”
Oh, that was a complicated situation, and it’s not a good example of the problems inherent in non-compete clauses.
Dorchester’s position in that matter was that the author had sold 3 books to Dorchester, had not delivered them, and had instead subsequently sold and started delivering books to another house. The crux of the matter was that, according to Dorchester, the books in question fit the description of the books that were still owed to Dorchester. Thus Dorchester appeared to have a strong argument that the author was in breach of contract.
I’ve always been puzzled by how that mess wound up in a lawsuit at all, let alone how it dragged on for SIX YEARS. It was a situation for which either of two standard solutions should have worked. One, the author apologizes to Dorchester for the misunderstanding, smooths troubled waters, and starts delivering the books owed to them. Two, the author returns the signing portion of the advance money to Dorchester and terminates the contract (which is the standard way for a writer to get out of a publishing contract s/he has decided not to fulfill for whatever reason–personal, professional, creative, time management, illness, whatever). Either of those standard, normal choices for resolving this mess would have made more sense for both parties than what actually happened–a six year legal battle.
Laura, yeah, that was my puzzlement about that suit as well, and I could never dig out any real reason from the public filings or even private information that answered the very question you asked. So not a good example. Something really strange in that case and out of normal by a ton of ways, nothing which really had to do with what Kris is warning writers about.
Dean,
A group of writers were talking about this very clause in “ghostwriting” except the publisher wanted the writer to never publish anything – fiction or non-fiction. The ghost-writers were giving up their entire writing careers to write autobiographies for people like Snookie. And these writers were in a “stable.” –forever and ever ghostwriters.
I am appalled and still appalled that a publisher would have this written into a contract. I am appalled that anyone would sign such a contract.
Cyn
Laura,
Sorry I hadn’t heard that. In that case, it makes even less sense for such a long drawn out legal fight. Nobody got rich but the lawyers, I bet…
Kelly,
Pretty much.
Thks, DW. I’m a fan and quoted you recently at the Geneva Writers’ Conference in front of a Scribner’s panelist in from NY. I also quoted the illustrious Jonny Geller’s (Curtis Brown) tweet: “Negotiating a contract is like trying to get a fish to fry itself.” ScribnerMan’s eyes bugged out as I asked the attendees, “Do you wanna be the fish?” ScribnerMan for his part advised aspirants to ignore the business side and just get on with the writing. At which I gagged and added, “Yes, if you want to be the muggle who lets the wizards divvy up your allowance with their incantations you don’t understand. No! Grow up!”
Yup, it was eight weeks from turning in the ms. That’s when they started to line-edit and pre-sell before signing. I walked. Now I’m on my own getting to grips with upping the backlist on all fronts.
@D.L. Kung – They started editing and selling your book without a contract? Ulgh! Sounds like someone screwed up or like they were trying to pressure you into signing. Either way, not a good sign.
As a note for folks, if you write articles for magazines, websites, blogs, etc., that’s another place to watch the contracts. Some specifically bar you from writing on the same topic ever again—and if you’re lucky, that limit will only be for comparable publications.
(Disclaimer: I’m no lawyer; I’m not giving legal advice; etc.)
At the risk of looking like a complete idiot, I’m going to ask a question…
I live in CA where non-compete agreements are automatically void, save for a few small exceptions, none of which appear to apply to a publishing contract.
But if the publishers are in NY, is there a clause that says the contract is governed by the laws of NY, and does that trump the fact that the writer lives in CA?
Thanks!!
Kary
Ok, answered part of that myself – out-of-state agreements are not enforceable in CA.
So then the question becomes… so what impact does living in CA have on any non-compete clause that might be passed my way?
Do I use “I live in CA” as the reason for having it removed? Or do I sign it knowing that I have an absolute defense?
Oh, heavens, Kary, you don’t know that for sure and it might not apply in two-party contracts. I find it fairly hard to imagine the state actually jumping inside two-party contracts like that. Way against most provisions of the UCC. And I’m fairly certain the state would be tossed on their ear when trying to intervene on such a contract. Now I am not a lawyer, but let me say this. Trust ONLY what you have signed. Nothing more. Sure, there might be clauses of one sort or another that are not enforced such as the bankruptcy clause, but never depend on the state to save you. Only sign what you can live with.
If you can make some lawyer in New York believe you about the California provision to get a clause removed, more power to you, but can’t imagine you will be able to. Those clauses have killed many a career. Just don’t sign them. Really is that simple.
Cool, many thanks.