Kristine Kathryn Rusch

The Business Rusch: The Future And Balance (Deal Breakers 2012)

Written By: Kristine Kathryn Rusch - Aug• 01•12

I started this small series on deal breakers two weeks ago, in response to Novelists, Inc’s request for an update of an article that I gave them last August. I thought such an update would be easy until I read the article itself. Then I realized just how much had changed in the last year.

Because of some of the responses I’ve gotten privately, and because of some of the discussions on various message boards, let me say this: Contracts are meant to be negotiated. They are not set in stone until both parties sign it.

Yes, you might lose a deal if you stand firm on some contract terms, but you won’t lose a deal if you negotiate your contract. So many writers think that negotiation is wrong, that it will offend your editor/publisher, and that it’s better to be published than it is to negotiate.

Those writers are wrong. Worse, they’re willing victims. The first drafts of any contract are the worst drafts of that contract. Some clauses in that contract are there to see  how poor a negotiator the person on the other side is. If you accept the contract with all of the original clauses in place, then you’re volunteering to be screwed.  Bottom line.

Worse, the publisher knows what you just volunteered for. The publisher might be happy with your willingness to cave, but your editor isn’t. At some point, you’ll wake up to your stupidity and your editor will either lose you to another publishing house or take the brunt of your (ill-informed) anger.

If you’re worried about looking bad in a negotiation, then sign a terrible contract. I can guarantee that someone on the other side will either angrily or gleefully call you an incredible idiot behind your back. And I can also guarantee that the other side will know you have no business sense and no spine whatsoever, and those people will take advantage of you in horrible ways.

After all, you’ve just signed up for it. Literally.

If you believe your agent will protect you, then you have an old-fashioned idea of agents. The worst contracts I’ve seen in the past five years have been negotiated by young agents without law degrees. Most of the writers who signed those contracts were bullied into it by the agent, who either didn’t understand the contract or, worse, did understand and wanted the deal completed no matter what.

As I’ve said in all of these posts, hire an intellectual property attorney to help you with all contracts that concern your writing, including any agreement you think you should sign with an agent. You have to know what you will and will not accept in a contract, and before you can do that, you must know what you’re selling. If you have no idea that you are licensing your copyright when you make a book deal, or if you don’t know what that means, then buy The Copyright Handbook and read it carefully. You won’t be able to read it in one sitting, but you might want to keep it in a place where you do grab-bag reading, like the kitchen table or the bathroom. Read a small section. You might not understand it at first, but you’ll eventually get a clue.

If you don’t believe you can negotiate, if you think you don’t have the balls to do so, then pick up my book called, How To Negotiate Anything. Believe me, thirty years ago, I didn’t believe I could negotiate either. I learned how to do it with my particular skill set rather than using someone else’s, and I’m here to tell you if I can do it, anyone can.

Finally, walk into any negotiation with the knowledge of the things you can bend to accept and the things you simply cannot accept. Be ready to walk away if you cannot accept something.  It’ll be tough the first time, especially if it’s for something you really want, like a book contract, but believe me, you’ll be a lot happier in the long run if you walk at the beginning rather than accept something that makes you compromise your project, lose all your earnings, and possibly destroy your career under that name.

Don’t think any of that can happen? Then you haven’t read modern publishing contracts—at least, you haven’t read them and understood them.

In the past few weeks, we’ve discussed all kinds of deal breakers, and honestly, I can understand if most of you don’t take my advice on them. We’re all different, after all, and we have different needs and wants from our careers.

However, we all want careers. At least I hope we all do. I’m writing this column for professional writers and those who want to be professional writers. And if you are a professional writer or want to be one, then you need to have a career.

The only way to have a career is to remain in control of your writing.

Who you sell it to, and how you sell it, happens to be your business. You may take a little money for a lot of prestige or no prestige for a lot of money. You may take a long-term contract when I think you should have a time-limited one, or you might gamble on giving something away in a circumstance in which I might not.

All of those are business decisions.

However, there is one thing all of us—as writers with careers—must walk away from: contracts that control not just the project in question, but all future writings.

Right now, traditional publishers, particularly the large companies (erroneously called The Big Six), are trying to control everything about a writer, from the rights she sells to the amount of money she makes. They also want what they’re calling “a non-compete” clause.

In reality, it’s a “do-not-do-business-without-our-permission” clause.

I did write about this in last year’s article, but I was a bit more lenient toward publishers than I am now. What changed? I certainly didn’t. I believe that writers should protect their rights as much as possible.

What changed is this: publishers have started requiring non-compete clauses in almost all of their contracts, and are making those clauses a deal breaker from the publisher’s side. In other words, the publisher will cancel the deal if you do not sign a non-compete.  The choice you are given is this: either you let the publisher control your entire career just because you sold that publisher one book for $5000 or you walk.

If that’s the choice you’re given, walk. Hell, run.

You have other options now. You can go to a different traditional publisher if you want. You can publish that work yourself. You’re even better off putting that book in a drawer and not mailing to anyone than you are signing that clause.

I do not say that last lightly. I almost never tell writers to put books in drawers and keep the books away from readers. But if you have to chose between giving up control of your book and your future books, or putting the book in a drawer, then for god’s sake, put that book in a drawer, and write a new book. One that won’t go to a publisher who wants to control your life and livelihood.

Got it?

Because the moment you sign that clause, you give over your entire career to a corporation that cares nothing for you. Even if the clause does not hold up in court (and quite honestly, I don’t think the clause can hold up), you’d have to spend years not writing and litigating to prove me right.

Here’s the place I remind you that I’m not a lawyer. I never went to law school. But I’m an observer, and I have seen some ugly, ugly things happen to writers who have signed this clause.

What is the clause? Well, it’s not an option clause. For almost twenty years, publishers have used the option clause to have dibs in an author’s next book. In other words, the publisher got the right of first refusal on that book, and no one else could see it until the publisher made up his mind.

Properly negotiated, an option clause benefited the writer as well as the publisher, often by forcing the publisher to bid on the next book long before the first book came out. A bad option clause could prevent a writer from publishing another book for a year or two after the first book came out—and this was in the previous century.

But agents, attorneys, and most writers learned how to take the teeth out of an option clause.  And those toothless option clauses remain, which is why I am not saying anything bad about an option clause. Your option clause will probably look fine.

You’ll often find the non-compete clause in the same section of your contract as the option clause. The non-compete clause will look something like this:

The Author agrees that during the terms of this Agreement he will not, without the written permission of the Publisher, publish or authorize to be published any work under this name or any other, including blog posts, short stories, nonfiction articles, novels, or the like.

In other words, the contract will prevent the writer from making a living at his craft. I saw that clause in my first contract with Bantam Books fifteen years ago and hit the ceiling. (The word blog was not in it, of course.) I thought I was going to lose this rather large contract because no way in hell would I sign a document with that clause in it.

I demanded the clause’s removal and got it with no fuss at all. (I must tell you that my agent at the time, who was all kinds of shady, recommended that I sign the contract with the clause in it, and then ignore the clause like all his other clients did. I ignored that advice, and wish I had fired him on the spot. It took me another couple years to fire him for something else entirely. Boy, was I young and dumb.)

Writers have signed contracts with that clause, however, and have done so recently. I know of at least two mystery writers who need their publishers permission to put up a blog post. I know of several more who have had to get a document granting them blanket permission from their fiction publisher to write nonfiction.

Do you really want that to happen to you? Because it could if you sign this clause. Also, look at what I wrote last week about how hard it is to get out of a contract these days.  Consider that the contract, like your mortgage, might get sold to another company you’re entirely unfamiliar with at the moment. (This just happened to Avalon authors. They signed with Avalon, but now they’re published by Amazon.)

Your current publisher might not enforce that clause; the publisher/business your current publisher sells out to might enforce the clause, and make you pay damages for anything you’ve previously published after you signed the contract and ignored the clause.

Worst case, right? Yes, it is. But before you sign a contract, you must imagine the worst-case scenario. The contract you negotiate should protect you from bad things, but you have to realize how bad those things can actually be.

Let’s go back to the clause: It is ridiculous. It’s there to prevent you from controlling your craft.  According to that clause, your publisher is in charge of everything you write, whether the publisher pays you for it or not. Got that?

I have seen other versions of this clause, negotiated by (idiot) agents for their established clients. Those versions usually read something like this:

The Author agrees that, during the term of this Agreement, he will not, without the written permission of the Publisher, publish or authorize to be published any work substantially similar to the Work or which is likely to injure its sale or the merchandising of other rights herein.

This is only marginally better. Seriously. You’re still asking your publisher’s permission to write something. Granted, it’s only under one name, and if your publisher withholds permission, you can start up a new pen name, but honestly…who signs this stuff? And what advisor thinks something like this is okay for a writer to sign?

Because the problem isn’t with the publisher’s permission. The problem here are two phrases: “substantially similar” and “likely to injure.”  Who decides if my funny fantasy novel about fairy tale characters is substantially similar to my science fiction novels about the Moon? They are supposedly in the same genre—sf/f. Or what about my mystery series set in Chicago in the late 1960s? Is that substantially similar to the mysteries set on the Moon? They are both mysteries after all.

And who determines of those Moon mysteries “injure” the sales of the 1968 mysteries? Does the fact that I’m also publishing romance, a genre that many sf editors don’t respect, “injure” the sales of my sf books?

See the problem?

It gets worse when you think about who gets to decide. Most writers will let their publishers decide. Those writers who challenge the publisher’s decision will find their books, their careers, their livelihoods tied up in civil court, waiting for a judge to decide.

I have seen several versions of these clauses negotiated to death, with all kinds of phrases added in, but none of them are toothless, and all of them tie the writer’s output to his publisher’s permission.

For me, this clause is a deal breaker. No one controls my career but me. No one tells me what to write but me.

The best way to handle a non-compete clause is to refuse to sign one.

So…you take the non-compete clause out and you’re in the clear, right?

Hell, no. Lately these publishers have been adding something in the boilerplate section of the contract (which most agents don’t even read). A boilerplate section is the stuff that should remain the same from contract to contract—you negotiate it once, and it doesn’t change. It’s stock or formulaic language that covers expected things like insurance coverage and Acts of God.  Some boilerplate can be changed and some can’t.

In the boilerplate section is something called a warranty, and in it, you’ll find language like:

The Author Warrants that the Work is original, and uses no material from any other source

Things like that.

Only cagey publishers have started to add this:

The Author Warrants that she will not publish any other work until this contract is fully executed.

In other words, the Author can’t publish anything until all the terms of the contract are met. Meaning that she cannot publish anything until the second or fifth or tenth book of the contract is published, and maybe, depending on the wording, not even then. She might not be able to publish until the book goes out of print.

And refer to last week’s post. Most books aren’t going to go for decades, maybe more.

Seriously, folks, watch out for this stuff.  Take clauses like this out of the contract.  If your publisher refuses to remove language like this from your contract and you still sign it, you will have no one to blame but yourself for your tanking writing career. Because you put your signature on a legal document giving someone else control of your output.

Let’s look at the non-compete clause from yet another perspective—one of balance.

Technically, contracts should at least pretend to have balance between the parties. Theoretically, you and your publisher are equal partners in the venture of publishing a book, and your contract should reflect that. Contract law, in dozens of countries including ours, assumes that both parties are able to enter into the contract equally, with the same kind of knowledge and judgment.

If you can show, in court, that you’ve been swindled, bamboozled, or forced to sign a contract whose terms actively harm you, then the contract might—and I use the word “might” here on purpose—be canceled.

One of the things a judge will look at to see if one party is unfairly taken advantage of in the contract negotiation phase is balance. If the entire contract benefits only one party to the contract, then the contract is unbalanced, and argues—by its very existence—that the other party was taken advantage of.

The judge is not required to act here, and often will not.  This is one of the many reasons I tell you to avoid court.

But let’s explore balance for a moment:

If you are a professional writer who makes her living on her writing, and you have signed a contract that does not allow you to practice your trade, then there must be some similar consideration for the other party to make the contract balance.

In other words, if your publisher wants you to sign a non-compete clause, then your publisher should sign one as well.

If you ask for a non-compete as ridiculous as the one the publisher is asking of you, then it would read like this:

The Publisher agrees that during the terms of this Agreement he will not, without the written permission of the Author, publish or authorize to be published any work that might compete with the Work, including blog posts, short stories, nonfiction articles, novels, or the like.

Imagine a publisher signing that. Oh, you can’t? Neither can I.

But let’s dial it down a notch. Let’s say you sell a vampire romance to Publisher A. If the contract has balance, then you can’t publish a romance or a vampire book that might compete with yours—and neither can your publisher. Even if you limit the non-compete to two years, imagine telling your traditional publisher that they can’t publish vampire books or romance books for two years after the publication of your novel.

Do you see now how wrong this clause is? You should not sign it because it’s bad for you. If that argument doesn’t sway you, then ask yourself if any reasonable business would sign a contract with a clause like that. Or if any business would sign a clause like that for any reason.

Your writing career is a business. Act like it.

Do not sign something that will stop you from practicing your trade.

Ever.

If you don’t like deal breakers, ignore all the others I’ve discussed. Do not ignore this one. Walk if a publisher wants you to sign a non-compete.

If you do not walk away from that contract, then you probably won’t have a writing career a few years from now.

And that’s the bottom line.

A lot of you stepped up last week when I mentioned that donations decline when I write contract or money-related posts. Thank you for the acknowledgements and the kind letters. I greatly appreciate it.

I still have a few more things to cover. This topic gets bigger by the year.  I’ll be doing a few more such posts before the fall begins.

The blog itself has to remain financially self-sustaining, because I make the bulk of my income on fiction (and can use the 3K I write every week for my fiction instead).

So if  you learned something or like what you read, please leave a tip on the way out.

Thanks!

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“The Business Rusch: “The Future and Balance (Deal Breakers 2012),” copyright © 2012 by Kristine Kathryn Rusch.

 

 

 

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56 Comments

  1. I’ve walked away from two book contracts. It is hard, but the feeling of relief you get when you turn your back is… amazing. As if you could just feel the bullet you dodged, and life is suddenly a little clearer, more real and more precious. :,

    I remember one of those editors telling me I’d “never” sell the book when I walked. I went on to serialize it and make more money off the serialization that they were offering as an advance (and all that money was mine, free and clear, and not an advance against anything). And then I self-published the thing and for something that would “never sell” it seems to be doing fine. :,

    • MCA, you’re right. It does feel amazing. I had both an agent and an editor tell me I’d never sell another book again after walking from one contract–and that was before indie publishing took off. I still ended up selling that book, and amazingly, I have a career. :-) The agent, however, got fired. :-)

  2. James says:

    When I read this, and the last few posts, I almost screamed in horror. I should stop reading these posts at night. :)

    The more I read stuff like this, the more worried I am. I can’t even imagine signing with a traditional publisher now. Even if you can negotiate stuff like this, do you want to?

    After all, IP lawyers aren’t cheap. If I have a few hundred spare dollars, I’d rather use them for a good copyeditor and/or cover designer, rather than paying a lawyer to jump through all these hoops for me.

    It may just be me, but trad pub makes less and less sense now…

    • I can’t imagine the nightmares, James. :-)

      Contracts often have bad stuff. Negotiation is part of any business. You just need to know what you’re looking out for. I worked for a textbook publisher in the 1980s who had the worst–and the best–contracts I had ever seen (even to this day). Just accept that negotiation is part of it.

      And I do beg to differ. IP attorneys are cheap, comparatively speaking. They cost a few hundred bucks. Agents, who can’t do the job any more, take 15%. So if you have a 20,000 advance, you’re paying $3,000 to an agent, when you could have spent $300 for the IP Attorney. And the agent continues to earn on that 20,000-book if you do. So if it becomes a 100,000 book, you will pay $15,000 for a job that should have cost $300.

      However, your point on what you can also get for that $300 is well taken. (Imagine what you can get for that $3,000!)

  3. Joe Vasicek says:

    That is absolutely disgusting. Even if indie publishing wasn’t an option, there’s no way in hell that I’d sign a contract with a clause like that.

    What are these publishers thinking? That they can somehow stem the flood of self-publishers and regain their cartel-like control of the market? Or do they honestly believe that the serious writers who do quality work are going to fall for this? It seems to me that the consequence of this behavior will be to drive out all the serious professionals, replacing them with floundering newbies. How is that a long-term strategy?

    • Joe, you’d be surprised how many people do. And how many have done so without realizing it. I was once told by an editor friend that she knew writers who only looked at the payout of the advance and the delivery dates on their contracts. Imagine what those writers were signing. :-(

      • Daniela says:

        I have one rule I live by: “Never sign anything you haven’t read.” Even with a fidgety sales agent standing next to me I read the whole contract and even the small print.

        Which is also why I don’t do contracts over the phone. ‘Amazing offer?’ Sure, send it to me in writing and I’ll take a look at it. ‘What, contract right now and here?’ Sorry, no can do. Not without something in writing in advance.

  4. Good info here, hubby and I had a long talk about this post and agree with you.

    Honestly I think I’m too much of a control freak to be willing to turn my work over to someone else. At this point in time at least. :P

  5. TXRed says:

    Thanks for this. I heard a regional intellectual property lawyer explain that the cases he hates the most to see are people coming to him to try and break a contract after they find the “flaws” too late. Mostly they are from the so-called vanity presses, but some have been from major companies. There were some pained winces from the audience as he went over the red flags, all of which you’re describing.

    • Where was this, TXRed? Sounds like a great panel. And yeah, once the contract is signed, you’re committed. In that instance, you need to chalk it up to one of those damned learning experiences.

      • TXRed says:

        It was at the Panhandle Professional Writers Association annual workshop, held at Amarillo College, Amarillo, Texas in late June. The attorney did two panels, one on copyright law and the other on contracts. Both were excellent and very understandable.

        • TXRed says:

          I should clarify my initial comment – not always break contract as in “help me get my books back” but in his case often “how can I get them to stop billing me,” since he works with people in vanity press contracts fairly often. Same fine-print and catch clauses problem, though.

  6. David Barron says:

    “At some point, you’ll wake up to your stupidity and your editor will either lose you to another publishing house or take the brunt of your (ill-informed) anger.”

    This rang true. I am extremely conflict-averse, but then I get mad…

    Anyways, as my professor said: “worst case is the only case”.

  7. I’m curious about short story contracts to pro paying markets. I realize you should still be ready to negotiate and ready to walk away; but what sort of issues should I look out for? I’ve only signed two so far, both for the same market, and I thought they were pretty generous: payment on editor approving the ms, exclusive world wide English rights for 6 months, rights to use in that anthology in perpetuity. I never would’ve considered negotiating that one, but I hope it’s not my last!

    • The short story contracts in the sf field are usually pretty good. Most are in the mystery as well. But you should read every contract, every time. Contracts change, companies change, what they want changes. Be prepared to negotiate. Generally speaking, however, I find short story contracts–particularly with the magazines–to be good for both parties (publisher and writer), and worth pursuing.

  8. Des says:

    This post came at a great time for me, since I’m getting ready to send of a submission soon. I’ll be honest, though. I don’t usually jump on the “traditional publishing is evil” bandwagon, but it does make me think twice about wanting to submit work to them. ;)

  9. nathan says:

    Please tell me you’re not getting an venomous emails about how you’re killing young writers’ careers on THIS post, Kris.

    Please, please tell me your google alert hasn’t popped up with people saying how hateful and ignorant your advice on this particular matter is.

    Actually, I take that back. Tell me. Anyone who disagrees with what you wrote here would make for hilarious reading.

    • Not yet, Nathan. But that stuff usually shows up in my alerts a few days after it happens. So ask me on Saturday. :-) And on the contract stuff, I rarely get hate-fulled e-mails. People usually argue against me on private boards, where they think I don’t see what they’ve said. :-) (You’re right: it usually is hilarious reading.)

  10. Steven Mohan says:

    Yet another brilliant post–thanks, Kris! This is the one I’ve been waiting for since you started doing the deal-breaker columns. Non-compete is not just a deal breaker, but a NUCLEAR deal breaker. The thing that kills me is that the publisher is seeking to control a writer’s work without paying for it. So instead of getting one novel for $5k, they get EVERYTHING for $5k. Crazy!

  11. I have an additional clause in my later contracts:

    Nothing in this agreement shall obligate the AUTHOR to submit any additional, unrelated works to PUBLISHER.

    That way, the publisher can have the first refusal rights (which is detailed), but this is in there just in case there anything else that’s sticky or covert.

  12. Randy says:

    Non-competes are very common in broadcasting, and many people have challenged them in various courts. Some states have made them illegal. One would think it would be illegal for one company to prevent someone from making a living…

    However…

    A friend of mine was fired from a radio station. He had a six month non-compete clause. But since he was fired he assumed he was clear to take another job. Wrong. The old station owner took him to court and won, actually getting a court order that prevented him from working at another station in the market.

    In our crazy judicial system, anything’s possible.

    • Exactly, Randy. Always assume that the clause will work against you. Avoid court at all costs. Don’t sign the contract in the first place. Thanks for sharing. Recently, one of our TV weather people did not get his contract renewed. The competing station wanted to hire him and challenged his non-compete, but no dice. He couldn’t even Tweet about weather. (The old station shut him down.) Fortunately for him, he had only a six-month non-compete, but in broadcasting, I’ve heard of 3 year or more non-competes. That’s just crazy.

    • Daniela says:

      I had a similar situation once, but in my case the German Employment Agency got involved because I was fired. The company voided the non-compete because otherwise they would have had to pay a fine to the Employment Agency for limiting my ability to apply for a new job.

  13. Joe Cron says:

    The mindset of writers who would sign one of today’s non-competes is astonishing, and apparently frighteningly common. Your comparison to the publisher signing a flip-flopped version of the clause is brilliant, and points up one of the most glaring atrocities in the clause. No business operates that way.

    Even other artists are not so masochistic. Many decades ago, it was standard for actors to sign exclusively with a movie company, but nowadays? Oh, hell no. Can you imagine an actor signing a movie contract that said they could not do other movies, TV, commercials, voiceovers, print ads, or anything else, without that production company’s permission? Insanity. But writers? Sure…

  14. antares says:

    KKR,

    “Even if the clause does not hold up in court (and quite honestly, I don’t think the clause can hold up) . . . .”

    And the answer is . . . it depends on where lies the jurisdiction.

    When I practiced law, I did a lot of non-compete work for doctors. (Doctors made great clients. First, they had money; they paid on time. Second, they had brains but no legal experience; that meant they believed they could reason their way through a contract without recourse to a lawyer and, thus, they always had legal problems for me to solve.)

    In Texas, where I practiced, public policy favors competition. Non-compete clauses are seen as anti-competitive and are only enforced when they do not unduly restrict competition and when present consideration is had for the non-compete. Thus, for a doctor, a statewide non-compete clause would be unenforceable.

    Most non-compete clauses I saw were written in a contract for a doctor to learn a procedure or technique from another doctor; that is, they were in a contract for a master-apprentice relationship. After the ‘apprentice’ learned to perform the procedure and went his own way, the non-compete clause became unenforceable unless there was ‘present consideration’, generally meaning some continuing form of payment in money or educational services or other value given. Even then the clause specified that the contract was for a particular county and all contiguous counties. A non-compete clause for Houston would not prohibit a party from setting up shop in Dallas.

    I think it likely that a Texas judge would void a publisher’s non-compete clause as being against public policy.

    That is not the case in New Jersey.

    A client came to me for my legal opinion regarding a non-compete he had signed in NJ. The scope of his non-compete clause was worldwide and it extended for 5 years after termination of his employment with the company sans present consideration. My experience led me to believe that on these two points alone I could get the contract voided. But when I researched NJ law I got a surprise. NJ courts routinely upheld similar provisions. I told my client that based on the results of my research, he would expose himself to liability if he opened his planned business in Texas.

    I do not know how New York law treats non-compete clauses. I am willing to bet a considerable sum that most publishing contracts from New York houses specify New York law.

    Three last items:

    1) Get a lawyer.
    I used to tell my doctor clients that they could pay me early or pay me late. Pay me early — that’s like the cost of a flu shot. Pay me late — that’s like the cost of a 3-day hospital stay. They got the message. Usually they got it late, but that wasn’t my fault.

    Besides, you don’t know what the words in the contract mean.

    Don’t believe me? Here’s a test: What does the word ‘necessary’ mean?
    .
    .
    .
    .
    .
    It means ‘convenient’. McCulloch v Maryland, 17 US 316 (1819)

    Words in a contract may not mean what you think they mean. The reason your contract sometimes contain gobbledygook is because that gobbledygook has been tried in court, and the lawyer can predict the result you will get with it in another court.

    That’s what got the doctors in trouble. They gave the words a meaning they knew. I knew the words meant something else. Or nothing.

    2) Evidence.
    “[W]ho gets to decide [what constitutes an injury to the sale of a book or the merchandising of other rights].”

    I know who decides: a judge. The publisher may claim injury, but only a judge can decide it is so.

    The problem is evidence.

    The standard in a civil court is usually preponderance of the evidence.

    If the publisher claims injury, how do you — the writer — refute that claim? Do you have access to accurate reports of the publisher’s income vis-a-vis your work? Can you get such?

    This is an evidentiary nightmare. Given the way publishers keep accounts, I doubt clear evidence either way exists. But if they make the claim, you can bet they will have some numbers to back it up. That may be all they need to win a judgment.

    3) A man’s word.
    When I was a kid, my father told me, “If a man’s word is good, you don’t need a piece of paper to make it better. If it’s no good, all the paper in the world won’t change that.”

    A college degree, a law degree, and many years of practice later, that is still the best legal advice I have ever heard.

    Hypothetically speaking, if I got a contract with such a non-compete clause in it, I would scan the contract into my computer, clip the contract to the envelope it came in, and file it away. Thereafter, I would refuse calls from that publisher or his representatives. I would direct all communication from that publisher to my attorney. I would then direct my attorney not to communicate with that publisher. That publisher would be dead to me.

    Almost everybody will deal honest and fair when the skies are blue and the money is flowing in. But when the storm comes and the money stream dries to a trickle, do you really think a man who wrote that clause into a contract will treat you honest and fair?

    • Wonderful, wonderful post, antares. Spectacular advice. Everyone, please, please read this. Antares’ analysis here is exactly why you do not sign contracts with clauses you do not want and expect you can weasel out of them.

      As to language, he’s also spot-on. Every word in a contract means something, and what it means depends on the type of contract, the type of law it invokes, and how that word is used in that particular area of the law. A good friend is a corporate attorney, a major one for big businesses. Dean & I showed him a publishing contract. He frowned, read the first page, and said, “I don’t understand this at all.” He was smart enough to know that the legal language in publishing law was very, very different from the contracts he specialized in.

      This is why I tell you to hire a specialist, why you need to be very, very, very careful about what you sign.

      My only question, antares, comes at the end of your post, in the paragraph about the publisher being dead to you. Why would you scan the contract into your computer?

      • antares says:

        For evidence of bad faith in dealing. (That clause is egregious.) And because paper fades and gets lost. And because, if I ever need it, I can transmit an eCopy easier and faster than a paper copy.

        Habit. That plays a big part, too. There once was a reason for that habit. The fact that I cannot recall the reason at the moment does not negate the reason.

        I just thought of another reason, but it is one that only lawyers would appreciate.

    • Stephen Miletus says:

      Just want to underline a point Antares made here. McCullough v. Maryland is one of those handful of legal cases every American can be presumed to have heard of, in the category of Brown v. Board of Education, or Roe v. Wade. (Look up that case & you’ll see what I mean.)

      I read the decision many years ago in school. I never realized it defines the word “necessary” in this way.

      If there’s a land mine like this awaiting in a part of the law any reasonably educated & intelligent average person is expected to know about, I don’t need to guess what land mines await in the parts of law I’ve never even thought existed.

  15. RD Meyer says:

    I think the disconnect comes from the perception that many (mostly new) writers have that if they walk away from a contract, they’ll miss their only chance. We have it drilled into our heads all the time about how hard it is to land a deal and that there are always other writers out there that a publisher can find, so people are scared to stand up for their work.

    Fortunately, indie publishing has begun to level the field a bit. Not entirely, of course, but enough to provide options, which is how writers gain more leverage in negotiations.

    • You know, RD, I’ve hated that argument since I first heard it in 1985. It’s silly. It doesn’t matter if it’s your only chance; you don’t sign the contract. Period. You lose the chance. Because that chance isn’t worth the paper it’s written on. It’s a literal deal with the devil. So no. You don’t sign a contract like that period.

      The only thing indie publishing has changed is that now a few more writers will stand up for themselves. But only a few. Too many still believe the myth you cited, and it’s very sad. It was sad nearly 30 years ago. It’s sad now.

      • RD Meyer says:

        You’re right, but it’s definitely been beneficial to traditional publishing for that perception to be out there(by beneficial, I mean for their bottom line and level of control, not for the publishing world in general).

  16. Mary Fishler-Fisk says:

    Writers aren’t the only creative types struggling with a, perhaps genetic, predisposition to gullibility. This from the NY Times: http://www.nytimes.com/2012/08/02/fashion/taking-a-hard-spill-in-designer-shoes.html?emc=eta1

  17. Michele Lang says:

    Thank you so much for writing this post. I’ve encountered non-compete clauses in employment contracts in the past, and though in that context they are supposed to be limited in time, place, and scope, clearly these publisher clauses go beyond that.

    Whether they are ultimately enforceable or not, I agree with you about the importance of dealing up front with non-compete clauses this sweeping. It is *so* much better to avoid a legal fight by negotiating before you sign than to try to break a clause on the back end.

    As hard as it is to negotiate a book contract, as a writer you are in the best position to negotiate the terms after an offer is made but before you sign.

    And as you note, no matter what business you are in, you will have to negotiate a contract at some point. This story gave me the willies — two shoe designers signed away the right to use their own names on their designs:

    http://www.nytimes.com/2012/08/02/fashion/taking-a-hard-spill-in-designer-shoes.html?pagewanted=1&_r=1

    thanks again Kris!

    • Michele, thanks about the non-compete in employment contracts. It does happen and it’s theoretically limited, although the tech sector had a big squabble about them in CA recently. They’re being challenged in court by people with money to fight the big companies, so we’ll see. Of course, that’ll only impact CA law. And for all I know, this might have settled, since it was a few years ago.

      That’s the other thing, folks. A lot of companies settle with one disgruntled client/person who is willing to sue, and the settlement won’t change anything for anyone else. Which is another reason to avoid court. You might spend a lot of money to gain back the ground you had before you signed the contract, but you only win for you. (If you win.)

      As for that NYT article, writers sign clauses that give their names away all the time. I haven’t even touched on that particular clause. It’s usually in the promotions section of the contract. It’s truly pernicious. I refused to sign a British contract that specifically gave them the rights to my name–for the price of a short article. The rights were in general, not for that article, and in no way would I sign that contract. I gave the poor editor fits, since he wanted my piece. I kept walking away. Finally, the company gave me (and about two other writers) completely different (and reasonable) contracts from all of the other writers–all the while we were being told that we would “ruin” the project’s chances for sale by our recalcitrance. I didn’t care. I was willing to walk. But the editor wanted to fight the good fight, so I stayed. Poor guy. I still feel for him, being in the middle of all that.

  18. I know at least two people who have been publishing with large traditional publishers, and have recently walked away from new contracts because of some of this type of stuff. The publishers assumed that because these individuals had six or more books with them, and have been doing financially pretty well ($50-$100K each year) that there would be no question. When the publishers wouldn’t budge on clauses like you’ve discussed, or basket accounting both of these individuals walked.

  19. Steve Perry says:

    It is always hard to turn away work, no matter how much of it you get offered, and the fear is the same for a bestseller as a newbie. What if they don’t ask again?

    It could happen, and it has happened. The idea is scary. When the Great Recession fell on us a few years back, a lot of writers were severely wounded, some critically. I had a pretty good career, but the well mostly dried up at my house. But the ill-wind blew me into checking out ebooks, which were just becoming a reality, and I got the jump on some folks because I had time to go there. I don’t regret that, and every month when I get those checks? I just shake my head in wonder. All those out-of-print books are out there and a little here, a little there, it adds up. It’s like free money. There have been months when ten copies of that and six of this and these produced more revenue than the advance I got for my first novel. I’m still amazed at that.

    The standard when I was hustling was to take the job and then figure out how to get it done. But there are times when you have to walk away or risk your sanity, not to mention your hands. When it comes to you, you have to decide how you balance things, and when somebody wants a pound of flesh and perpetual slavery? If you can’t retire to your private island on what they pay you, it won’t be worth it. Life is too short.

  20. Daniela says:

    People are really signing contracts like that? Really? That’s just… have no words.

    Granted, I’ve signed a non-compete contract once but that was for an employer and limited to a specific industry and the direct competition of that employer.

    I read through that clause and was just shaking my head. I would never sign a contract like that, no matter how much I want to see my book in print.

    When I think about all the writing I do aside from the writing writing, like blog-posts for my own blogs and other blogs, articles for non-profit magazines, and so on. Just the idea of having to ask a publisher’s permission to do that, sorry but that idea is absolutely ridiculous.

    It might even impact my job. I used to work in Marketing and wrote newsletter and most of the texts for the webpage. A clause like that would have meant that I would be unable to do my job. You know the one I was hired to do. Same with the things I do now. What when I write a text or a blog-post for my own business-webpage? Or a training-manual for a course I’m giving? Would I have to ask publishers permission for something that is in no way related to the book or even to the publishing industry? Sorry, but that’s utterly insane.

    People really sign such contracts? I’m still totally baffled by that.

  21. Val Roberts says:

    Like many writers, I have a day job; I’m a technical writer for a software company. I wouldn’t be able to sign a publishing contract with an absolute non-compete clause, because my employment contract stipulates that anything I produce at the day job belongs to my employer. Most of it is published, too, under the name of the company.

  22. Beth says:

    I’ve been approached to do a story for an anthology (very small press). It’s got some clauses that I’m making eyebrows about, and mostly I’d be doing it as Advertising, but I’m pointing out some of the stuff that bugs me and — as this runon sentence kind of displays — putting down negotiation points in email is HARD! Stressy!

    Thank you for these posts about the business. It reminds me that I’m not a Terrible Person for saying, “This, this, and this are bugging me.”

  23. Vicki Hinze says:

    Kristine, I’m glad you’re writing on this non-compete clause. I just walked away from a house I had wanted to work with and an editor I very much enjoyed because of a non-compete clause. When negotiations began, that clause started as a five-year post publication of the books involved (which would have made it roughly seven IF those books published at the max allowed after acceptance) and covered everything: any book-length work in which I was an author, contributor or co-author. (Note that it wasn’t restricted to the name but to author, so no taking a different pen name. No authoring.)

    That would have been fiction and nonfiction, and included same or similar topics in the same depth and manner for the same audience.

    These terms weren’t defined in the contract, and so they could have meant whatever whomever held the contract chose for them to mean.

    Negotiated but publisher insisted on the non-compete and for three years on works same/similar topic, same depth and manner and same audience. Still undefined.

    I really liked the house and the editor was terrific (I wanted to work with her), but a non-compete was not acceptable for the reasons mentioned in your article and more.

    If an author genre-blends, writes fiction and nonfiction, and those items are undefined, guess what? The author can’t write under any name in any type of book, short story, nonfiction or anything else.

    Why would anyone agree to “work” this year and “not work” for the next five (or seven) years for a less than one-year income that prohibits that person from writing and earning through other revenue streams? The author can’t work anywhere writing anything in which s/he’s skilled.

    Hard to walk away from the deal? No. Necessary to one who wishes to continue to write for a living.

    I hope authors are taking to heart what you’re saying on this because it is extremely important to them now and over the life of their careers–which such clauses could make very short careers.

    Blessings!

    • Frank R. McBride says:

      Just out of curiosity – how did the publisher react? Surprised? Or just a business like “Well ok then”?

  24. Rick says:

    Yes, the non-compete clause in these new contracts is a nasty piece of work. I signed them often in my former industry, but they were always there for a reason (and discussed ahead of time). Like antares, I’d probably walk away without a word if one showed up in a publishing contract. It defeats the purpose of the contract. That publisher would go in my nut-ball file. I’d probably smile at the possibility of spilling my drink down the front of his shirt at the next fund raiser, as well.

    By the way, these agreements often go hand-in-hand with a warantee where you basically agree that the non-compete clause does not harm your ability to make a living.

    With respect to non-compete clauses, though, people shouldn’t forget the 600-pound gorilla in the room… the clause they’ve already signed. It’s in their employment contract.

    Actually, this one’s an ownership issue, but it amounts to the same thing: a writer may lose the ability to write.

    Anyone working for a company had to sign some HR paperwork on their first day at work. Most didn’t read the papers. The ones who did probably read with the caveat, “these are the terms I’m agreeing to from nine-to-five while I’m sitting at my desk.”

    One of those pieces of paper probably says that everything the employee writes belongs to the company. It gets tricky if an employee is exempt. The company feels that exempt employees are always “on the clock.” If they’re always on the clock, employees are always being paid, so anything they produce belongs to the company. The company paid them to produce the writing. (Their way of thinking.)

    Yes, I know that I’ve just been tossed in the nut-ball file by a bunch of people for saying such a thing. Would the company making such a claim win in court? Beats me. Would the company actually file? I don’t know, but I do know that the last Fortune 500 where I worked actually did mean “everything.”

    Before I signed, I told them I was a part-time writer and asked about my stories. It was a hard fight. It took two rounds for the company lawyers to finally concede that the company probably wouldn’t claim ownership of any “Star Trek” stories (duh!) They did eventually carve out the entire science fiction genre, but not mystery or fantasy, and they specifically wanted to own all the non-fiction.

    Does that sound like a point they weren’t interested in protecting or enforcing?

    People can assume “nine-to-five within the walls of the office,” but unless that’s what they paperwork actually says, they might already be operating under a far more restrictive competition agreement than they know.

    • Rick, I just had to comment because I spent over 30 years in Academia and at each new college I was asked to sign something like you described. At each new college, I did two things prior to accepting employment. 1) I listed all the books I’d published to date (fiction and non-fiction), all the articles I’d written to date (no matter the area of expertise). 2) I stated that any future work pertaining to any of those things or written in the future in those areas or any related areas on the list was exempt from their “university owns all or shares all” contract language. Fortunately for me, I’d written widely. I had an article in almost any area I’d possibly write in. On the one hand they had to accept they couldn’t usurp copyright registered prior to my employment. But they didn’t have to agree to my demand they couldn’t own or share copyright on anything related I wrote in the future. In each instance I was hired anyway. They realized that having my reputation was more important than the paltry royalty sums they might earn on a shared product.

      Some publishers, not enough, are figuring this out now too. I have a friend who recently signed an HQN contract, and wrote into it that she had the right to self-publish other works that related to the series (i.e., short stories or novellas that HQN was not interested in contracting). Interestingly, the publisher agreed that anything she might write would only help the sales of what they’d contracted. They actually understood that all works helped each other. A step in the right direction I think.

  25. John Wiswell says:

    Thank you for pointing out a nefarious trend. That is something we should look out for. Seems like another overreach in a self-protective industry.

    Is there any chance you’ll follow up this post with stories of authors successfully removing such clauses during negotiations? Guest posts or links around to how authors discovered them, whether their agents/IP attorneys helped root them out, the objections publishers used to the defend them, and the tactics that won them over would be enormously helpful. I ask partially out of ignorance and pessimism, presuming a publisher would say something like, “This is standard,” and present it as something you can’t change or that would be an ordeal to change. If it’s actually not a struggle to remove such language, that would also be very worthwhile news. But we’d only really learn by getting the examples of people who went through it and who were willing to talk.

    I realize that would be a huge request even if this blog was your primary occupation, but it’s content I’d be very interested in reading.

    • You assume that all publishers and all publishing contracts are alike, John. I might be able to get a clause removed that say, a new writer couldn’t. Or that a writer with a 6-K advance might be able to get removed. All from the same publishing house. Contracts are all different, and different from different publishing houses, different for different advance levels, and sadly, different for different levels of business sophistication on the part of the writer. (A business-dumb writer might be offered a bad contract that a smarter writer might never see.) So even if I had the time to do as you asked, which I don’t, the information would be useless. Some writers will get it removed; others will be asked to take it or leave it. Saying, “But so ‘n ‘so got a better contract,” is like saying to your mom, “Billy gets to do it!” It won’t make any difference. That’s why I do these posts, so individual authors can make individual decisions when faced with these things.

      • John Wiswell says:

        Evidence is seldom useless, but I’m sorry for making a request that you don’t have the time to fulfill. Cheers.

        • You miss my point, John. Writers get all kinds of concessions in contracts. It varies so widely that it really makes no difference as to whether or not another writer should try. (Okay. Writers should always try. I mean, whether the writer should compare herself to another writer.) Let me give you another example. When I worked for a textbook publisher in the 1980s, the company had a legal-size file drawer filled with contract templates. Those templates were 20 pages each or so. Each contract was different and there were nearly 250 different templates. Some writers got one template–and then negotiated the hell out of it. OThers got a different template and didn’t negotiate at all. What was different? Who the writer was, what the project was, who the editor was, how much the author got paid, whether the author had a contract with the company before, whether the writer had negotiated that contract and so on.

          I’ve worked for other companies with even more contract templatess, just in the sf department. All of those templates were different from the ones at the textbook publisher. The templates were (and are) different from the ones at the sf department of the major publisher down the street.

          We can only talk in general about these things. That’s what I said in the previous column. Some of the non-competes were in the warranty in some contracts. In others, they were in the option clause. In some contracts, they had their own section. In some contracts, they were in all three places, and in some there was no non-compete at all. So what use is it to have Writer A tell you they’d never seen a non-compete (might be the company they signed with; might be them) or Writer B tell you that he got the non-compete removed from the option but not the warranty (did he notice it in the warranty? Did his negotiator? Did the publisher have the non-compete in the warranty on any other contract?). It’s impossible to know someone else’s contract, and even more impossible to know if it will apply to you.

          I’ve had literally hundreds of contracts with various publishing houses. Even in the same house, I’ve had different contracts depending on the year, the genre, the book, the advance. Comparing me to me doesn’t get me anywhere sometimes, and sometimes it makes a huge difference. That’s why even pursuing this as an article really isn’t helpful. What’s helpful is to know where the tripwires are and how to avoid them.