From author Kameron Hurley:
When you’re a new writer, you mostly talk to other new writers about craft. Once you publish a book or two, though, you’re increasingly talking to your peers about the business of writing and publishing. You talk about contracts and foreign rights deals and rights grabs and the benefits and drawbacks of self-publishing and being a hybrid author.
One of the big issues we’ve been dealing with the last 15 years or so as self-publishing has become more popular are the increasing rights grabs and non-compete clauses stuck into the boilerplate from big traditional publishers terrified to get cut out of the publishing equation. Worse, these clauses are becoming tougher and tougher to negotiate at all, let alone get them to go away.
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This reluctance to nurse mid-list careers is bad news for writers who want to go the traditional publishing route, especially as it’s happening at a time when many editors are overworked and marketing budgets continue to get slashed and advances continue to tumble. If you’re a new author in SFF, don’t be surprised to get a first offer of $5,000 that demands your first-born child and everything you and they will ever write, and if you sell just 3,000 copies, well, sorry, we’re done with you and maybe go back to the small houses or come back to us with some vampire erotica we can sell.
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Non-compete clauses ask a writer to take an advance of $10,000 or $20,000 or whatever and prevent them from having any other novel-length work come out for a full year (or more!) before and after the book is published by that house. Sometimes this is “only” six months before and after. Sometimes it’s “only” novels in a related genre or can be negotiated to “only” novels in the same world. But it’s always awful and you always have to yell hard about it to get it wittled down to something manageable.
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For authors who write four books, or eight books, or more a year, big houses adhering strictly to this clause while paying advances under $50,000 a book would mean preventing most authors from making a living wage as writers (remove agent’s cut, taxes, and health insurance from that number, and yes, friends, that is what I’d consider an actual living wage, not . . . $20,000.
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Also of importance is that this clause makes the sort of unreasonable demands on an author that can only be made of an actual employee. You know, someone who gets health insurance and other benefits. By asking authors not to compete against themselves, they’re skirting dangerously close to moving us into the “employee” category that they want to keep us out of. I have a non-compete clause in my employment agreement at my day job that prevents me from taking on freelancing work that competes with my day job work, and those hold up (mostly) because I’m actually categorized as an employee.
So are we employees or contractors? I’m actually surprised no one has taken a non-compete clause to court, because I think a serious legal inquiry would be interesting.
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I have some great publishers, and editors who have gone to bat for me to make things work. I have great relationships with the vast majority of them. I know it’s a tough business. I know they struggle with it too
But their parent companies see us as widget-makers, and they make it tougher and tougher for editors to hold out the open palm instead of the fist. Goodwill with your editor, or “my editor is so nice!” does not always translate to the nitty-gritty of the contract. A lot of those things are determined by the parent company up high, and are negotiated not with the editor but with people in the contracts department. Having a super nice editor who wants the best for you is great, but it does not guarantee there will be nothing but roses in your contract.
See, the big corp parent companies prefer the fist. They’d like to legally tie you to them, condemning you to live in poverty or keep your day job throughout your contract. But what editors and writers would certainly prefer is that publishers provide you with more value that helps make you and the work a success. Publishers who do things that make you WANT to do business with them are going to win over those who make it tough.
But that takes time, and effort, and resources. And so many editors are so short on those that it’s criminal. The great ones have done a fabulous job of helping us along, but their parent companies don’t always make it easy.
Clearly the parent companies, like many businesses today, are choosing the cheaper solution first. It’s way easier to serve up awful contracts than it is to invest in more editorial and marketing support. Better to just contractually bind authors to you because they have no other choice and are desperate for a sale.
Link to the rest at Kameron Hurley and thanks to Dana for the tip.
Here’s a link to Kameron Hurley’s books. If you like an author’s post, you can show your appreciation by checking out their books.
Kameron points out an interesting phenomenon in the dynamics of the author/editor relationship.
Authors, especially new authors, often regard editors as powerful deities who exercise life-or-death power over the author’s career. The editor is, of course, the gatekeeper controlling access to the publisher.
However, inside the publisher, except for all but a handful of senior editors, acquisition editors are pretty far down in the corporate hierarchy. Several levels of executives above the editor are the gatekeepers controlling the editor’s ongoing access to paychecks.
The lawyers responsible for a publisher’s contracts typically report through the general counsel up to the big bosses who are high above the editor in the corporate organization.
Life is much easier for the editor if she doesn’t rock the contract boat. While some authors can hire an attorney, who will talk directly to the publisher’s lawyer without going through the editor, new authors may be concerned about legal fees and being viewed as a troublemaker inside the publisher.
The power dynamics are completely screwed up for the new author unless he/she is determined to exert management control over his/her career.
A couple of notes on non-compete clauses that PG has mentioned before, but are worth repeating:
Non-compete agreements are creatures of state law and limitations on them can vary from state to state.
Virtually all Big Publishing contracts specify that New York law will govern the contract. PG is not a member of the New York bar, but his nonofficial opinion is that many of the non-compete clauses contained in publishing contracts would run into problems in New York courts. PG doesn’t believe that lifetime noncompete agreements (the life of the copyright is the length of most publishing contracts) in an author/publisher relationship would be enforceable under New York law, for example.
PG is a member of the California bar, however, and is able to state that California simply makes noncompete agreements unenforceable except for a couple of narrow exceptions that don’t apply to publishing contracts.
With respect to noncompete agreements that specify the law of another state will govern the contract, where a California resident is involved, California courts have, in the past, decided that California law will protect California residents from noncompete clauses regardless of what the contract says about choice of law and venue.
PG is not saying that all authors should move to California to get out of their noncompete publishing clauses. However, if an author is thinking a change of location might be a good idea (Malibu has never had two feet of snow), being able to write what the author wants to write without worrying about publishing contracts might be a factor to consider.