Home » Agents, Big Publishing, Contracts, Passive Guy » Bad Contract? It’s Your Fault, You Naughty Author

Bad Contract? It’s Your Fault, You Naughty Author

14 September 2012

Passive Guy originally had this post set to run a month ago. He received word a couple of hours before it would have appeared that Ms. Grant’s husband had died a few days earlier.

PG’s initial impulse was to delete the post. However, after more thought, he believes authors should understand Ms. Grant’s errors so he elected to defer the post instead.

Agent Janet Kobobel Grant explains why some publishing contracts have such unfair clauses:

 Recently I’ve found myself explaining to a number of clients why some sections of contracts have especially stringent terms. My clients fall silent when I say, “Every paragraph has an author’s initials beside it.”(Which is a quote from an editor, by the way.) Oh, those initials are written with invisible ink, but the truth is authors are responsible for much of each publisher’s contract.

. . . .

Adequately spelling out the rights in a contract has become a feat worthy of a Gold Medal gymnast. Digital and multimedia rights alone have added several paragraphs to every contract. What it means for a book to go out of print has become a complicated matter as well.

But another big factor in fattening up contracts is the authors themselves. Through creative interpretations of the less expansive contracts of old, authors have pushed the line of what they could get away with to limits that astound and shock the unimaginative. To see what they’ve done is like walking through your house with a burglar as he tells you all your vulnerabilities that never would have occurred to you. A publisher, seeing an author violate the publishing house’s good will, phones an attorney and asks for new contractual language that protects the publishing house.

. . . .

3. Noncompetition clauses that result in the author not being able to produce any book-length work before the last contracted book is published. This has been a deadly clause for authors. Picture this: You sign a three-book contract, agreeing to write one book per year. You’re thrilled because you are receiving a nice advance to begin with and then regular payments during the three years you’re writing. But, as those years play out, you discover that with such a long time period, the payments aren’t adding up to enough to remain financially stable. When you check your contract, you find that the noncompete paragraph locks you into not write anything book-length, regardless of topic or genre, until the third book is published.

There are many versions of the noncompete, and I’m portraying it in its most extreme version (which occurs in several publishers’ contracts). It is, in my opinion, publishers locking down authors so the possibility of making a living wage is highly unlikely. Some publishers are immovable when it comes to this clause, but others are willing to make it a more reasonable part of the contract.

How did this paragraph come into existence? Picture the author who decided to contract simultaneously with several publishers and not to inform any of them of the other projects. The publishers, in good faith, invest editorial, marketing and sales dollars (tens of thousands of dollars) into making their book a success. Only to discover the author has created competition for him or herself by flooding the market with too many books at once. Everyone loses–every publisher and the author. So the publishers decided to build a fortress around each author, preventing that writer from creating a worst case scenario. Protection makes complete sense. But now authors who are savvy enough not to cannibalize their own sales must adhere to stringent noncompetes that make it hard to earn a living.

Link to the rest at Books & Such Literary Agency and thanks to Bill for the tip.

Passive Guy has often been struck by the similarities between the way publishers and agents regard authors and the way former slave-owners regarded former slaves following the American Civil War and for many decades thereafter.

In a million different ways, the attitude manifests itself.

Why do slaves and authors get whipped? They brought it on themselves. If they had done what Ole Massah told them to, he wouldn’t have whipped them. Good slaves don’t get whipped.

Agents often have lots of advice to authors about how the author should operate her blog.

Here’s a bit of advice for agents and their blogs – Don’t demean authors. Don’t blame authors for your problems or structural problems in the publishing industry. Don’t treat authors like children.

Former slave-owners couldn’t help themselves. The attitude slipped out in all sorts of different ways. The attitude was passed down from one generation to the next and the next until those who expressed such attitudes toward African Americans finally became objects of scorn and derision in the larger society. Ill-considered blog posts by agents are rapidly entering that realm.

A couple of additional thoughts about typical non-competition clauses in publishing contracts:

1. They’re inexcusable and Ms. Grant was foolish to try to justify them. Unconscionable has a specific legal meaning and, while PG is pretty certain non-competition clauses may qualify, he won’t call them that.

2. Ms. Grant didn’t get her phrasing quite right when she wrote, “So the publishers decided to build a fortress around each author.” A more accurate way of describing this is, “Publishers decided to place each author into a financial prison with little or no consideration for the author’s welfare.”

3. Ms. Grant wrote, “But now authors who are savvy enough not to cannibalize their own sales must adhere to stringent noncompetes that make it hard to earn a living.” The authors have to feel Ole Massah’s lash.

A dope-alert gong rings in PG’s head whenever he hears someone talk about cannibalizing sales. (Yes, this can result in a headache if it happens too many times during a day.) Whenever PG hears this, he asks the person to explain exactly what cannibalization means and, step-by-step, how it works. Nobody ever succeeds in providing a cogent explanation. They just heard someone say cannibalization is bad and mindlessly pass on the drivel.

Let’s try this with the “authors cannibalizing their own sales” statement. A non-compete clause typically means that the publisher will release books by an author about one year apart. This twelve-month gap is supposedly necessary to hold the cannibals at bay.

Assume that a reader buys a romance by Jane Author and likes it. Assume that Jane violates her non-compete and self-publishes another romance a month later and the reader buys the second romance. What sale was cannibalized? Turn the timing around and have the reader buy Jane’s self-published romance, like it, then buy the traditionally-published romance. Same result. Where’s the cannibalization? If the reader liked Jane’s first and second books, does that mean she won’t buy Jane’s third book when it is published twelve months later?

If a sale is “cannibalized” in this scenario, it’s the sale of a book by an entirely different author. The reader buys Jane’s second book instead of buying one by someone else.

Do readers maintain book budgets categorized by author so when they buy one book by Jane Author, they’re out of money to buy a second or third book because the Jane Author budget for the year is already spent?

What’s the typical purchasing pattern for a romance reader or a sci-fi reader or a reader in virtually any other genre who finds a great new author? They immediately look for a second book and if they like that one, they look for a third. Particularly with series, readers want to read them all. Is there any cannibalization going on here? No. What you’re doing is taking advantage of the best time to make a second sale and a third.

And by giving a reader the opportunity to buy more books quickly, you’re turning them into a Jane Author fan. One book may do it, but two or three in rapid succession are much more likely to succeed. It has become axiomatic among savvy self-publishers that the best marketing tool is more good books.

PG would posit that the best way to publish a three-book series is to publish all three books at the same time. (He knows it takes time to write books two and three, but he’s talking purely about the optimum way to introduce a series and trashing this cannibalization crap, so don’t jump on him.)

Considering consumer psychology, why is it ever a good idea to wait 12 months after releasing book one in a series to publish book two?

PG suggests this is a terrible way to release books for anyone but JK Rowling.

In some way, the publisher has managed to catch the interest of a reader and sell him/her book one. After 12 months, how many readers remember book one? Or the author of book one? From a marketing standpoint, you’re pretty much starting from scratch, trying to get a reader’s attention all over again to sell book two. Maybe this is one of the reasons why some series in which the first book gets reasonable sales bomb later on.

4. Where’s Ms. Grant’s outrage at contract clauses that “make it hard to earn a living” for an author? How would she feel about contract clauses that make it hard for an agent to earn a living? Isn’t she supposed to be on the author’s side? Doesn’t she want her authors to be able to earn a living from their writing? Why doesn’t she use her blog post to rip publishers who engage in this foolish and harmful practice?

Why doesn’t she point out that calling the attorney to create a nastier contract for all other authors is a really stupid response to a bad experience with one author? Why doesn’t she ask if the real problem was with the contract or with the editor’s decision to enter into a deal with an unreliable author?

Perhaps it’s because the slaves always deserve their beatings.

Agents, Big Publishing, Contracts, Passive Guy

97 Comments to “Bad Contract? It’s Your Fault, You Naughty Author”

  1. “Through creative interpretations of the less expansive contracts of old, authors have pushed the line of what they could get away with to limits that astound and shock the unimaginative.”

    P.G.

    Yeah, right. Them mangy authors, bunch of scallywags….

    brendan

    • Brendan, that is the exact section I was about to quote. Then I was going to say WHAT? Seriously, did she mean to write that the other way around and forget to edit it?

      “any technology ever created in the future” comes to mind, and it wasn’t authors who put that “creative” little gem in.

      The other bit that made my jaw hit the floor was “So the publishers decided to build a fortress around each author, preventing that writer from creating a worst case scenario.”

      How sweet of them to go ahead and protect the stupid authors from their own idiocy. How respectful.

      wow.

  2. Geez, PG, I barely just woke up and I read this extremely impassioned post with all sorts of incendiary language.
    Way to go!

    All this makes dealing with Amazon Bangalore and their incessant worrying over 50 cent price differences a piece of cake.

  3. I had never heard of the non-compete clause in publishing contracts until I started reading yours and other blogs (Konrath, Rusch, etc). It boggles the mind that a publisher would do that to an author. Common sense says that getting an authors name and work in front of readers is always a good idea.

    Even with my small readership, I have readers clamoring for more books and asking when the next will come out. I wish I had a whole backlist to release on a bi-monthly basis or something. Unfortunately, I’m a slow writer, but at least I have control over the release of my books.

    I’m not sure I understand the actual writing allowed in those clauses. Does it mean that authors can’t even write a book and sit on it until after the last book in the contract is published? How would anyone know? In the year between finishing that third book and it being published, an author could write two more novels and have them ready to go as soon as the third book hits the store shelves. Is that not allowed?

    • There is no way for the publishers to know if you are writing another book and just sitting on it. It’s when you PUBLISH it somewhere else (even self-publish it) that gets their panties in a bunch.

      Granted, if you are writing other things on the sly, you might miss the deadline with your publisher for the book you signed a contract on. That’s another way to p*** them off and have them flap that contract in front of your face and want some if not all of the royalties back.

      Just admit it, when you sign a contract with a publisher, in all likelihood you’re signing your soul away too.

  4. PG, I think you’re being too hard on Janet Grant here. She is explaining how these clauses came into existence, not giving outright justification for them. And she’s right about the history.

    Re: non-compete clauses: in the old system, with print and seasonal buying being the only game in town, non-compete clauses WERE essential to the business model. Authors did cannibalize their sales cause bookstores turned away one or the other of the competing titles (I saw this several times among some of my contemporaries). It was always a risk to publish new fiction authors in the “old days” (pre-2007!) And to have authors harm the investment by putting out other books with another publisher, all without notice to the parties, was bad business practice.

    Things have changed now, and non-compete clauses have to change as well. We all know that. But I wouldn’t hold Janet Grant in contempt here (nor use a slave analogy, which is not what I pick up from her in the slightest. She is an author advocate, IMO).

    • Grant wasn’t able to defend what she wrote but based on what her co-worker, Wendy Lawton, wrote in response to several comments on the blog, it appears that Agents have strong business motive to keep on good terms with the publishers.

      No doubt most agents go in and try to work out the best possible deal but makes me wonder if they could push harder. If they know they’ll be back to the same publishing house in a week or two with a new manuscript from another author. If they p*** off a publisher or seem unreasonable in the negotiation process it’s the agent who get hurt long term.

      While I appreciate them giving the publisher’s POV, they seem to be using that as a justification of not getting the best possible deal for authors.

  5. I actually find Grant’s explanation of the non-compete clause fairly convincing. I can see why an author flooding the market with their work through different publishers *might* be a bad thing. My question would be, how many authors actually do that? Writing is a lot of work. Unless you have an incredible backlog of work to keep drawing from, it’s pretty unlikely that you’ll have it all come out around the same time. And besides, who’s to say publishers would want *that* much of your work? Not everyone is Stephen King. Sad to say it but not everything an author writes is even salable, at least through traditional publishing means. And we already know that publishers are very, very picky with what they choose to take on anyway. There’s a very limited range of what they think they can sell/make a profit on.

    But that said, if anything Grant’s argument illustrates just why traditional publishing is no longer a good deal for many authors. I’m glad there’s an alternative because when you have to spell out clauses that strict and *then* go after authors who supposedly violate them, it means the chances are low that either side is making a whole lot of money anyway. They’re basically fighting over every penny. As an author, I wouldn’t want to have that kind of relationship with my ‘business partner.’ I’d rather go it alone and take the profit myself. It might be a heck of a lot more work, but it’s more satisfying than fighting with the people who are supposed to be in business with me.

    • Liz, it really is possible to produce huge quantities of work in a short period of time. I myself have produced over 700000 words of new fiction in the last 17 months.

      It’s funny, today a nice magazine editor asked me not to submit for three weeks so they could catch up with the other submissions :)

      So yeah, it is possible for a fast writer to produce enough books to flood a small genre like science fiction. The real cure is to write in several genres, not to slow down writing.

      • So yeah, it is possible for a fast writer to produce enough books to flood a small genre like science fiction.

        Seven 100k books in 17 months isn’t what I’d call ‘a flood’. That’s about four books a year, which gives people plenty of time to read the last book before they buy the next one.

        If you want to write a book a weekend like Lionel Fanthorpe, you might have to worry about ‘flooding’. But then you just use multiple ‘nyms.

        Ultimately the ‘only one book a year’ rule exists to protect publishers, not writers.

        • Take into account that (a) I am a part time writer with a full time ‘real’ job which I spend 80% of my time working at and (b) no single publisher would want to risk buying 4 books a year from a new author.

          According to his web site Lionel Fanthorpe has produced 250 books over 50 years. That works out at 5 books a year. He did go through a phase of writing an average of a short book every 12 days. If I were to write full time I suspect I could match him.

          • According to Wikipedia, Fanthorpe wrote 89 of those books in one three year period, which was the time I was referring to. As far as I remember, he dictated into tape recorders over a weekend, his wife’s typing students transcribed the tapes to paper and the publisher pumped out the paperbacks. I think he said they gave him a cover and told him to have a novel to fit the cover next week.

            That’s actually about one novel every week and a half, so not quite as fast as I thought. But still much faster than most of us.

    • Brick and mortar stores have limited shelf space, so each book competes with others for space.

      E-tailers might need to get more warehouse space for print books, and server space for ebooks, but the “shelves” at the store front are virtually unlimited.

  6. This isn’t about us writers. It’s about agents’ good rep with the publishers. It’s so the editors Ms Grant works with can see whose interests she supports.

    I’ve heard her speak several times at conferences, and the subtext is, “behave yourselves, don’t talk much, try not to question, and write only what the editors want most to see.” in our market, the one with which Ms Grant is most familiar, that usually means bonnet books. Yuck.

    • If that’s truly her attitude then authors will go elsewhere, where they are treated better. People tend to go where there is the least hassle and stress.

      • I used to think that, but I still see writers’ forums full of people desperately trying to get an agent because they think they need one to submit to publishers. There’ll be thousands lining up at the agents’ doors for some years yet.

        • Sadly, this is true. We tend to forget we’re in a bit of an echo chamber here. Unfortunately, we’re in the minority.

          • I will agree in part. Some of the comments on there were basically drooling newbie authors saying, “Oh, thaaaaannnnk yoooouuuuuu for lettin’ me know how not to upset the overlords. And please don’t think I’m bad, b/c I want you to take time to pee on me when I get thristy.”

    • I agree – the entire tone of the post is haughty condescension.

      Agents work for writers, not the other way around. That so many can’t realize this is one of the reasons traditional publishing is dying.

  7. Thank you, PG, for the most succinct sum up of what “cannibalizing sales” really is. Over the last few months, I’ve also run into that term, mostly used by agents and publishers, and it never sat well with me.

    Creative books (as opposed to textbooks) don’t work on the same economic rhythms as, say, blenders. If a company has a good blender on the market, and decides to offer a blender that is half the price and does 90% of what the more expensive model does, you have a case in which the cheaper item cannibalizes sales of the more expensive one. But with creative books, you don’t have that dynamic, because those purchases don’t operate on a strict utility/cost basis. If you like an author’s book, you’ll want to read the next one right away, and then the next one, the next one, until you a) have read them all, or b) run out of money. And even if you run out of money before reading them all, the desire to eventually read them all when you get more money still exists.

    Also, kudos to you on delaying this post until now. It’s hard sometimes to remember that blogs are still written by people who have things happen to them outside of electronic netherspace. I’m sure we can all stay civil and not feed Mrs. Grant to the sharks.

  8. I don’t know–did anyone else hear Gollum’s voice when reading this article?

    “Those authors are dirty, filthy thieves, my preciousssss. Yes, they are. What shall we do with them, precioussss? Bite them, chew them up, make them sign unreasonable non-compete clauses, yessss, my precioussssss.”

    • Elrond: The Boilerplate Contract cannot be destroyed, Gimli, son of Gloin, by any craft that we here possess. The Boilerplate Contract was made in the fires of Big Publishing. Only there can it be unmade. The Boilerplate Contract must be taken deep into Manhattan and cast back into the fiery chasm from whence it came. One of you must do this.

      Boromir: One does not simply walk into Manhattan. Its bridges are guarded by more than just tolls. There is evil there that does not sleep. The great Eye of Trump is ever watchful. It is a crowded maze of tall buildings, riddled with hidden tunnels, trash, and dust. The very air you breathe is a poisonous fume. Not with ten thousand men could you do this. It is folly.

      Legolas: Have you heard nothing Lord Elrond has said? The Boilerplate Contract must be destroyed!

      Gimli: And I suppose you think you’re the one to do it?

      Boromir: And if we fail, what then? What happens when Big Publishing takes back what is theirs?

      Gimli: I will be dead before I see The Boilerplate Contract in the hands of an Elf! Never trust an Elf!

      Gandalf: Do you not understand while you bicker amongst yourselves, Big Publishing’s power grows?! None will escape it- you’ll all be destroyed!

      Frodo: I will take it! I will take it! I will take the Boilerplate Contract to Manhattan…though I do not know the way.

      Gandalf: I will help you bear this burden, Frodo Baggins, for as long as it is yours to bear.

      Aragorn: If by my life or death I can protect you, I will. You have my pen…

      Legolas: And you have my Macbook Pro.

      Gimli: And my PC!

      Boromir: You carry the fate of us all, little one. If this is indeed the will of the Council, then Gondor will see it done.

      Sam: Mr. Frodo’s not going anywhere without me!

      Elrond: No, indeed, especially when he is summoned to a secret council and you are not.

      Merry: We’re coming, too! You’d have to send us home tied up in a sack to stop us!

      Pippin: Anyway, you need people of intelligence on this sort of mission… quest… thing.

      Merry: That rules you out, Pippin.

      Elrond: Nine companions. So be it. You shall be the fellowship of the Boilerplate Contract.

      Pippin: Great! Where are we going?

  9. Here’s the real “cannibalization” of sales:

    Acme Publishing puts out Wile E. Coyote’s romance, “Feather Road” in May and begins prepping the sequel “Beep-Beep Blues” for the next year.

    Meanwhile, Mr. Coyote self-publishes an unrelated romance “Wabbit Wonder” in July.

    My. Coyote’s fans flock over to the Kindle/Nook/Kobo stores and buy this new book by their favorite break-out author.

    And while they’re engaged with this tale of furry cross-dressing, the book they don’t buy is Acme’s July romance by Mr. Duck, “Dithspicable Dates”.

    So, Mr. Coyote, an “Acme Author” has cannibalized some Acme sales. This should be of no concern to Mr. Coyote, of course, but you can see why Acme might feel a little put out. Hence the non-compete.

    So it’s not Mr. Coyote’s sales we’re protecting with all of this. It’s Acme’s sales.

    As for poor Mr. Duck… well, maybe he shouldn’t have signed that non-compete clause with Acme after all.

    • Except that, odds are, Mr. Duck’s sales will not only not be harmed by Mr. Coyote’s success, they could be improved. I never heard that another author lost sales because of all the dollars flowing to Ms. Rowling. On the contrary, reading went up for other similar authors as well – particularly when people were waiting for the next Rowling to come out and were looking for something to read in the meantime.

      As said above, cannibalization doesn’t apply to books.

      • True except when you put the asinine distribution practices into the equation:

        Distributor insists on eight slots for toony romances. Doesn’t care how much the audience wants more titles – it’s easier to manage by having eight titles per month, period, end of story, don’t confuse them with facts and figures.

        Furthermore, each publisher has a set number of slots, and they guard them jealously.

        Suddenly there is a ninth book to go into that rack. Who gets bumped this month? And if they do get bumped, does that mean they’ve permanently lost the slot? Ye Gods! Man the battlements! Get the intruder (or rival publisher) out of there!

        What? ePublishing doesn’t have slot limits? What nonsense are you talking? It must be a trick by Amazon. Man the battlements!

        Making it worse is the raging inferiority complex — they’ve been insisting that Mr. Coyote write strictly to formula because it’s easier to sell, and they have rejected his less forumlaic work… but what if they’re wrong?

        What if… what if that book Acme’s editors rejected is best-selling nobel prize-winning material? What if all the promotion they’ve been doing for his formula work causes the audience to find and race to that other, better work? What if people start asking “Why didn’t Acme publish this?” What if the boss/parent company asks that? What if the editor gets fired?

        Non-compete clauses do actually have real viable reasons for existence, but it’s all about publishers being too lazy to do their own job well.

  10. I just love it when something gets PG’s dander enough for him to add extensive words to a post.

    And I love the slavery analogy.

    Or, as I have heard say, “It’s always hard when someone loses a servant.”

    The change in the system, a servant getting out of his place, is seldom welcomed by the servee. Entitlement is universal; only some try to overcome the feeling in themselves when they notice it.

    It is part of parenting to slowly reduce services (if the child isn’t clamoring to “Do it myself!”) to one’s offspring; it is necessary for said offspring to finish growing up and be able to take care of themselves. It is even necessary for them to be able to properly put Mum and Dad into a home later in life (by properly I mean in a place where Mum and Dad would have placed themselves if they’d had the foresight).

    You reap what you sow. Publishers and agents are only reaping what they created for themselves: when their subjugated authors figure out what’s really going on there is anger, outrage, and a dumping of the old system where possible.

    Authors who have been subjected to this kind of garbage do not feel kindly about their former masters.

  11. One wonders why the agents are not inserting the non-compete clause if it’s not already there. Think of the benefits of thus protecting the publishers from us greedy writers.

  12. Perhaps agents should have a non-compete clause as well. Just think, with an agent putting 100% of his/her time into promoting a single author, said author could become the next Rowling/Patterson/King. If the agent is successful, one client would be more than enough to make a living.

    Come on, agents, show some commitment here. :P

  13. Thanks for posting this PG. I agree with your decision to defer, but I’m glad you didn’t drop it. This is the worst example of ‘blame the victim’ I’ve ever seen in an agent’s blog.

    I thought your summary was completely and totally on target, and the slave culture example is dead on target.

    You have to read the full post to really get the flavor of it. Grant also blames draconian deadlines (which if you miss, the publisher can cancel your contract and you have to pay back the advance) on the author.

    It’s utterly shocking to read a post by someone who paid to represent the author, who then blames the author for horrible contract clauses rather than taking the publisher to task for them. Or taking themselves to task for them.

    The unspoken subtext here is: Why have agents allowed these contract terms to be unchallenged?

    I basically see this as ‘spin’. Word is spreading, and authors are finding out that publishing contracts are unfair, draconian, and one-sided, in the favor of the publisher. Agents need to ‘spin’ this, because otherwise two things will happen:

    a. Authors will start to refuse to sign these horrible contracts.

    b. Authors will start to wonder why agents have been pushing these horrible contracts without either informing their clients of how awful the terms are, or protesting against them with the publisher.

    In this post, Grant is blaming not only publisher greed, but agent ineffectiveness on the writer.

  14. I’ll call those non-competes unconscionable.

    What judge would enforce a non-compete that is unlimited in geographic scope and time?

    I doubt many of these clauses get tested because, as people have noted, writing multiple books at once isn’t that easy and authors are too afraid of upsetting the publishing houses and getting blacklisted by suing.

    • Enforceability of non-compete agreements varies from state to state, Jeremy

      IMHO, very few non-compete clauses would withstand a court challenge in California.

      • That’s interesting, PG, because the tech industry thrives on non-compete clauses.

        A long time ago, when the blogosphere was fresh and young, some guy wanted me to work with him on some kind of blogging project for money. He asked me to sign a contract with a non-compete clause, which I ran past a lawyer. She pointed out that he would effectively prevent me from ever blogging again on anything for the length of the clause. (I’ve forgotten how long it was.) I told him to strike the clause and we had a deal. He refused, insisting that I would run off with his idea at the first chance to make more money than him.

        I never heard from him again, and oddly enough, he is not a tech billionaire today.

        • That’s interesting, PG, because the tech industry thrives on non-compete clauses.

          While true, most of them are either never enforced or unenforceable. I know people who broke such clauses by leaving to work for a direct competitor and the company, to my knowledge, never did anything about it.

          And I don’t mean the grunts, but fairly high up management whose knowledge directly benefited those companies.

          • It really does depend on where you live. I know people who worked in less-employee-friendly states where their non-competes prevented them from working for ANYONE in their field within something like a 300 mile radius. (This was before telecommuting was popular.) So the poor guy had to up and move something like three states away or his career would have been over for something like five years.

            Whereas, in Wisconsin it’s a whole lot easier to get the non-compete thrown out as uninforcable.

          • Never sign anything about which the publisher or your agent tells you “Oh, they never enforce that.”

            • Sure, I wouldn’t sign one if I expected it to affect me; if I remember correctly, the only one I ever did sign would have prevented me from working for a competitor for a year after leaving, and the company I signed the contract with would have had to pay me my salary for that year. Which didn’t seem to be a bad deal :).

              But my point was that although many tech companies want these contract terms, I can only think of a handful of cases where they ever have been enforced. I don’t believe that’s the case in publishing.

        • I don’t know if it’s still the case, but about 15 years ago, a lot of non-California tech companies that opened offices in California got dinged when they tried to enforce non-compete agreements that would have been legal in their home states.

        • That’s interesting, PG, because the tech industry thrives on non-compete clauses.

          Non-compete clauses in the tech industry don’t tend to say things like ‘you have to have our written permission before you publish anything of any kind in any medium anywhere in the universe’. Publishers’ non-compete clauses have been known to do that.

  15. Why am I picturing someone standing on the deck of the Titanic, yelling at the people in the lifeboat as they row away, telling them that they’re doing it wrong?

    I have to agree with Deb on this. I dont feel this was writen for the authors, but rather for the editors she works with.

    PG: Thanks to you and Kris, among others, we’ve seen many examples of what NOT to do. I was wondering if you could maybe Frankenstien a GOOD contract together from the halls of your personal contract museum for us to ponder?

  16. Why am I picturing someone standing on the deck of the Titanic, yelling at the people in the lifeboat as they row away, telling them that they’re doing it wrong?

    I have to agree with Deb on this. I dont feel this was writen for the authors, but rather for the editors she works with.

    PG: Thanks to you and Kris, among others, we’ve seen many examples of what NOT to do. I was wondering if you could maybe Frankenstien a GOOD contract together from the halls of your personal contract museum for us to ponder?

  17. “Only to discover the author has created competition for him or herself by flooding the market with too many books at once.”

    Because no one ever finishes a book, then rushes to see if the Author has another ones out there. I mean, books can’t possibly be that good right?

    I don’t think I’ve ever encountered cannibalization of sales. But I have heard of enough cases of sales sabotage, most often done by the publisher. Funny that.

  18. You know, the more I learn about the publishing industry the more surprised I am that it exists. Just the fact that it has survived for so long as a profitable industry when publishers are the WORST business people in the entire world seems to me a testament to the strength of the basic human need to tell and consume stories.

    I mean, can you even imagine if Hollywood told certain actors “No, I’m sorry, you’ve been in TOO MANY movies this year. It’s creating competition. You’ll have to wait until next year to make another one.”

    • Also, I thought traditional publishing was supposed to be PRO-competition. Isn’t Amazon the one that is supposed to be squashing competition?

      • Nice point, Sarah, about the pro-competition. :)

        One of the ways publishing managed to be profitable is by paying its supplier (writers) next to nothing and taking the bulk of the profits for itself.

        • Yes, but that’s the point. I have to think that if writers weren’t so desperate to tell stories they would never have taken such crap from publishers.

          • I think it was a monopoly situation. The only way to be published and get into a bookstore was through a publisher, so writers had to accept the terms or not be published.

            It’s possible there were writers who refused to accept the terms, and we may have lost many good books that way. Certainly, Harper Lee (To Kill A Mockingbird) stated that she refused to ever write another book because she wasn’t going to go through the publishing nightmare again.

            Although – writers could still have organized. I think publishers were very devious. They blacklisted any writer who spoke out. They isolated writers and kept writers from information. They parentified their role, and infantalized writers.

            And the main way they did all that – infantalizing, non-transparency, blacklisting, control? Through the agent. That is the agents true purpose, the real reason for agents.

            • Great answer Mira.

              There is a word for this behaviour- training people to accept that abuse is normal, even a good thing.

              Its called grooming. A favourite technique of abusers and bullies.

              • Thanks, Shantu. I think you’re absolutely right. Grooming, training people to expect and accept bad treatment.

                And be loyal to the people who inflict it. Just like writers feel guilty leaving Legacy Publishing even though they are treated badly.

    • The publishing industry exists, despite crazy flaws, because there is MASSIVE money to be made in books. Which is another thing that authors were a little too clueless about for a long time. Look at incredible waste (nearly half of all print runs trashed/returned, not to mention shipping and storage costs) plus huge overhead (Manhattan office space, anyone?)and one starts to realize the incredible amounts of cash floating around that made the system work.

      Listen, think about the size of Germany, compared to the US (especially now think about the romance-reading population). I just got half of an advance check from the sale of German rights of my second romance. HALF the advance is the amount the original publisher paid me. So, the German publisher is not only paying twice as much to the content provider, they are also sinking a bunch into translating that content, and then selling far fewer books (based on general population and readership) — and they are *still* going to be pulling in a nice profit (otherwise they wouldn’t be buying and translating American romances). Oh, and the Japanese advance was more than 2x what my publisher paid me.

      However, the profits in NY publishing are subsidizing a broken system. As the money tightens up, the system’s flaws become more and more obvious.

  19. PG

    Another great piece on non-compete clauses. They’ve been dissected at length by K.Rusch and others like her, but this is one subject that’s worth repetitive review.

    Love your snarkiness as well.

    I had never heard of the non-compete clause in publishing contracts until I started reading yours and other blogs

    Gee, that’s funny. After twenty years of studying publishing books, agent guides and trade mags, attending writers conferences and work groups and following agent and editor blogs; I had never heard of them either. Not until I discovered the indie-verse where authors were free to talk about their past publishing experiences.

    Strange, you’d think an entire industry was enforcing a…code of silence? Could it be?

    • Exactly. I have never been agented or had a contract from a publisher, but I did do a lot of querying and reading up on this stuff back in 2009-2010. There was no information on bad contracts–not from legitimate publishers–just from those vanity publishers like PublishAmerica.

      • I’d heard about some of the older ways that publishers used contract terms to screw authors, but only some.

        Back in the 1980s Norman Spinrad used to write a column about such things — before there were ebooks, and long before publishing got overrun with Hollywood bean-counters who had the diabolical gall to think up things like non-compete clauses.

        That column got Spinrad in enough trouble that it may have contributed to his later being effectively blacklisted by New York publishing. (That, and his habit of writing refreshingly snarky reviews with actual evidence and reasoning to back up his opinions.) For a few years, while his books were regularly on the SF bestseller lists, publishers put up with him because he was making them too much money to dump. The first time a book flopped — poof. Try to find a Spinrad book in a chain store now.

      • M.P., in those days, “being professional” included not outing your publisher for crap contracts if you ever wanted another one. How far we’ve come in just a few years, eh?

  20. James Scott Bell said:

    “Re: non-compete clauses: in the old system, with print and seasonal buying being the only game in town, non-compete clauses WERE essential to the business model. Authors did cannibalize their sales cause bookstores turned away one or the other of the competing titles (I saw this several times among some of my contemporaries).”

    This seems to be the only serious counterargument to PG’s post that I’ve seen so far, and it’s been ignored. I’m new to the biz and haven’t heard of seasonal buying practices in publishing.

    I can see this possibly being an issue for bookstores, with limited shelf space, being forced to decide how to fill that space. With an unproven author, they may choose to stock only one of several possible titles to keep their offerings diverse or to make room for a more established author on the shelves.

    • Seasonal book-buying was very much the norm, not sure where things stand these days. But you can imagine B&Ms having to choose carefully how to allocate their limited shelf space if too many books by one author came out in the same purchasing season.

      Publishers went just a wee overboard in their response. But when you think about it, it would be very hard to work that into a contract in a way that wasn’t draconian, but Publisher A can’t control when Publisher B puts out their book by Jane Author (and honestly, Jane Author can’t control when either publisher puts out her book). The publishers can only try to control Jane Author.

      This is less of a problem these days, especially if some of the releases are ebook-only. Hard to imagine a B&M carrying more than one book at a time by darn near anyone these days, frontlist or backlist.

    • Thoughtful, yes. But Jim Bell is maintaining that despite the fact that the old paradigm is gone, publishers rightly insist on these restrictions. I think his case is not made. I do know some publishers in Jim’s market that enforce non-compete clauses to the effect that you cannot even pitch a project your house would never publish. The question we should be asking is, why are agents not lining through this clause on *every single contract*? My guess is that the pubs would sooner or later catch on.

      • Why are they not lining through those clauses? (oh, how I wish!) This would take the effort of many (brave, or perhaps reckless) individual agents. Perhaps the publishers would catch on, but not until the individual agents’ careers bit the dust.

  21. I always liked KKR’s response to the non-compete the publisher inserts in the contracts — demand a reciprocal clause from the publisher, i.e. the publisher can’t publish another book that competes with the author’s book for the duration. :-)

  22. The most interesting thing to me was not the post itself but the comments. My mouth fell open a bit further as I read each one, until I began to not only question their motives but wondered if I ‘d just entered some publishing industry version of Stepford?

  23. “The most interesting thing to me was not the post itself but the comments.”

    Jane,

    Yeah, they are interesting. Further to what you point out, I was astonished at how articulate in difference they were. Usually, internet fights degenerate into a violent miasma of insult and cussing in three steps.

    One might find the posts not to ones liking, but mostly, they kept it polite.

    Kudos.

    brendan

  24. I just hope PG doesn’t get E-crucified over the slave references, complete with descriptive vernacular. Eisler got that treatment, and he only quoted M. Stackpole’s comments from another post a year ago.

    Stackpole took so much sh!t he had to publicly apologize for only making a reference to house slaves. One that was perfectly logical in how he explained it.

    Thinking good thoughts for you PG.

  25. I’m going to sorta defend the agent’s position here. I can understand that there are writers who can be slow in delivering a manuscript for which the publisher has contracted for, so a delivery date is important. (The message here is/should be understand just how long it will take you to write a book, & keep your editor up to date about how the writing is going. A reasonable editor will agree to an extension for most reasons rather than go thru the hassle of taking the money back.)

    I can also understand part of the reason for the exclusivity clause: the publisher wants the author to devote all of their writing time to the book they have contracted for so they will get it. If that *is* the intent of a given publisher, then the period of exclusivity should be negotiated to extend only as far as delivery of the manuscript. There is no reason for that clause beyond the point. (An author needs to earn a living.)

    But as for the rest of it… I agree with most of what has been written here. Publishing contracts are a mystery, & it is to the publisher’s benefit to keep them mysterious.

    As a last point, much of what I’ve read about literary agents reminds me of my dealings with real estate agents. (Well, except that real estate agents are licensed & required to have some knowledge of the relevant laws.) One important point is that real estate agents will, when push comes to shove, side with the seller in any dispute. In fact, I know in Oregon by law they are required to look after the seller’s best interest. And literary agents appear to see themselves as siding with the publishers far more often than with writers, who frequently know little if anything about how the publishing industry works.

    • I think the last paragraph is what this agent is missing – she works for the author, not the publisher. Yes, she should be maintaining a good relationship, but there has to come a point at which she sides with her clients if push comes to shove.

  26. It’s post like these that make it hard for me to believe agents that insist they work only to serve the best interests of their clients. Realistically and logically, an agent is best served by keeping good relations with publishers–they (the publishers) are the ones cutting the check, and while there is a steady tsunami of writers, there are only so many publishers. I would have a lot more respect for an agent who is honest and upfront about this, without trying to put a spin on it, than for an agent who steadfastly refuses to acknowledge the realities of the industry. I place a high value on honesty.

    Too many in the industry are stuck doing things the way they’ve always been done instead of looking around and finding ways to adapt to a rapidly changing industry.

    If I ever decide to go the agent route, I would definitely insist on having an agent who is honest and upfront with me. Someone who treats me like an adult who is capable of exhibiting moderate intelligence. Fortunately, with blogging and tweeting, it’s becoming easier to figure out which agents would not work well with my personality. I’d imagine a professional relationship with them would be fairly similar to how they comport themselves online.

    • Danyelle, it’s my belief that the moment agents as a whole begin being honest and up-front about which side their bread is really buttered on they lose their status as “authors’ representatives,” which is how agents used to term themselves. If I expect someone whose salary I’m paying to represent me in negotiations and they say, “In the interest of honesty, I have to tell you that I can’t represent you honestly and wholeheartedly because while I can jack you up and put another of thousands of potential clients in your place, I only have half a dozen solid contacts in the industry and I have to protect my standing with them,” I’m out the door so fast I create a little vacuum in their office space.

      In fact, agents have not been authors’ representatives ever since big publishers laid off droves of lower-echelon editors in a previous crunch about 30 years ago, which moved slush reading to the agents’ responsibility list and created the next generation of literary agents who were already used to being on the publishing side of the divide. It changed how agenting works, and any agents who wanted to continue the tradition of representing authors in negotiations rather than being freelance acquisitions editors for publishers were eventually overwhelmed by the tide of change.

      This is the way it is now, and what it means to me is that agents are no longer a valuable commodity. There weren’t even before I acquired my first one, but in those days we thought we didn’t have a choice. Now we know we do.

      • Bridget, this is absolutely true here in the UK, as well. My agent for fiction, many years ago, the late Pat Kavanagh, represented her clients but didn’t consider it her job to edit their work. That was the responsibility of publishers and their editors. I spent some years working on drama, and by the time I came back to fiction and a new agent many years later, she was telling me that all publishers wanted an ‘oven ready product’ as she put it (which should have rung alarm bells) and she was also acting as in-house editor for the agency. The change had already happened, but it took a long time (and a lot of angst) for it to sink in. The reason I’m sitting here with such a volume of work is that she wouldn’t submit anything to a publisher unless she thought it would be an instant hit and they were always trying to second guess last year’s unexpected success. But – as most writers will – I just carried on writing. She once remarked that if she submitted two books which were turned down (and this wasn’t on the grounds of quality – she and the publishers were telling me that I wrote well, these were excellent albeit midlist novels) nobody would ever look at a third submission. My blood ran cold. Her role was quite definitely freelance acquisitions editor for a bunch of publishers and she was no longer representing me and my work with any degree of passion.

  27. I agree, that the non-compete was more about competing for shelf space at bookstores who tend to only carry one book by any one author at a time, unless they were a hot seller. With the unlimited shelf space of the virtual shelf, that is no longer an issue. Because publishers are linked with physical books and ebooks, and because most of their physical book sales still happen at bookstores, their whole outlook is chained to that business model, and they force authors to fit into that one.

    Of course, the way authors have traditionally worked around this is the use of pen names. If you write four books a year and sell them, have four pen names. Then you are not competing with your other titles directly for that bookstore shelf space.

    I’m wondering, PG, have you seen any non-compete clauses that prohibit an author from selling under a different pen name? Perhaps with some non-disclosure agreements of keeping mum on who the author really is, like I know DWS has said he has signed, so that his pen name doesn’t get linked back to the DWS brand.

  28. In a more equitable world, publishers would keep their authors from moonlighting not with a punitive contract clause but by paying them a living wage so that they didn’t need to moonlight.

  29. What would happen to those authors who do sign a non-compete clause if their publisher went bankrupt before their book is published? Would the bankruptcy court still keep them from publishing elsewhere?

  30. I’m not a lawyer, but it seems to me such contracts are not enforceable. I mean, when I was an employee, my employer could not tell me what to do during nonwork hours.

    So just how can one party to a contract tell another what they can do on their own time on non-related issues? If an author fails to deliver a ms on time, that’s an issue, sure.

    I’d really like to know how authors cheated publishers — with documentation, not a ridiculous allegation of how sneaky authors are.

    Granted, some authors failed to deliver contracted novels on time, or ever. But most cases were for personal or creative reasons, not a desire to take an advance and run. Authors actually want to be published, and realize far better than anyone else that producing a ms is required. But the big picture is publishers have shafted authors far more than vice versa.

    • I think one of the things that bothers me about the non-compete clause is something that I haven’t seen mentioned yet. Sure, the main reason it is wrong is because it can cripple an author’s earning potential, but there’s another more subtle reason it bugs me. I’ve read some posts give a little justification for it because working on another project might delay the completion of the contracted project. If that is really a reason, it treats the author like they are a child doing their homework. “No television until your homework is done!”

      The contract is for the completion of the project. If the author completes it, it shouldn’t matter if they wrote a dozen other novels at the same time as long as they fulfill their contract. Instead of the non-compete, why not a clause that stipulates the consequences of not completing the project on time?

      • I don’t think the motivation can be because the publisher wants to monopolize the author’s time. If publishers wanted all of an author’s time, they would pay enough for the author to quit his/her day job. As it is, with typical advances of $5-10k per book, most authors have to work another full-time or part-time job and do their writing on the side. Publishers know this, and if they wanted it to be otherwise, they’d pay more.

        Also, there is a clause in the contract with consequences for not completing the project on time.

  31. It is possible for an author to cannibalize their Kickstarter, though… Or, well, any crowdfunded endeavor. A project can fund, and fund well, but you have to make sure that your core fanbase has enough time to replenish their funds.

    This can also eat into other Kickstarters; if someone has only $X for the month, and spends it all on the first Kickstarter to get their attention, well…

    So yes, it is in the publisher’s interests to only put out the number of books of Genre X that Core Fanbase of Genre X can afford in a month, unless they can tweedle the numbers such that the publisher spends less on each book, and therefore can sell less of each book and still make enough to meet their bills.

    It’s entirely possible that this particular feat can only be achieved by indie authors, writing at their own speed and accumulating a backlist… Although I do wonder, considering Baen, if it might not have been a more sensible move for the publishers to abandon the physbook Economy of Scarcity and instead get as many ebooks up as possible without sacrificing quality to bad OCR scans.

    It was a revelation to me when I realized that, while I liked having the happy sales-ranking numbers… The more books I had out, the less each individual book had to sell, while keeping the overall income the same. If publishers had thought, “Woah, ebooks. Eternal backlist with no inventory tax! No-work profits after the initial investment! The gift that keeps on giving!” instead of sticking to their Every Sale Is Zero Sum idea…

    Well, they stuck to their Zero Sum game and I’m not part of it. Yay!

  32. The Science Fiction & Fantasy Writers of America has had sample contracts up on its site for quite a while. Worth a look:

    http://www.sfwa.org/category/sample-contracts/

Sorry, the comment form is closed at this time.