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.