A concise assessment of my entrepreneurial planning. Well worth repeating.

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.

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.

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.

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.

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.

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!