Before I share the final post for this series, I’d like to take a moment to express my gratitude to Kathryn for sharing her knowledge with all my readers. It’s been an enlightening series. At the end of this post I’ll include links to all the previous posts, just in case you missed them. Please feel free to ask Kathryn questions and post your comments below.
What is the Non-Competing Works Clause in a Publishing Contract?
In the third post of this series “Dissecting a Publishing Contract,” we examined some of the general terms in a publishing contract — What are Some of the General Terms in a Publishing Contract?
This week, in the fourth and final post of this series, we’re going to take a look at the non-compete provisions found in many traditional publishing contracts.
Non-compete provisions have significant legal and economic ramifications that extend beyond the book or books which are the subject of the contract. Non-compete provisions are particularly odious and should be considered carefully before you agree to them.
Here’s the text of a non-compete provision from an actual publishing contract [the contract language is in black, my comments are in blue and not part of the contract]:
The Author will not, without written consent of the Publisher which shall not be reasonably withheld, perform services which result in a competing book with another publisher, and will not publish or furnish to any other publisher any Work of similar character on the same subject matter as the Work that would, in the reasonable opinion of the Publisher, be likely to interfere with or injure the sale of the Work.
Let’s take this clause apart phrase by phrase and re-order it so it makes a little more sense:
- “The Author will not . . . perform services which result in a competing book with another publisher.”
What you need to know:
- The first problematic issue in this phrase is “perform services.” Writing a book is not performing services, but co-authoring, or writing an introduction, editing, providing a blurb for, critiquing or even beta reading for another author could be considered performing services. Consider whether you wish to be precluded from engaging in these services for your colleagues because of a provision in a seemingly unrelated publishing contract.
- The second issue in this phrase is: what is a “competing book?” In this contract, the term is undefined and when left open can only be the source of trouble down the road.
- If you are writing non-fiction and the book that is the subject of the contract is about your area of expertise, any other book in your area of expertise will be considered a competing book. If you are an artist, for example, renowned for creating, and perhaps teaching, art in a certain style, this clause could keep you from writing any other books on the style of art on which your life’s body of work has been based. You could also be precluded from even creating workbooks, or templates, for your students.
- For fiction writers, a competing book could be one in the same genre or even one that comes out at the same time as the book under contract. Some publishers take the position that a competing book is one that uses the same characters in a sequel as the published book.
2. “The Author will not . . . publish or furnish to any other publisher any Work of similar character on the same subject matter.”
What you need to know:
- Notice that this part of the clause refers to a “Work,” not a book. Most publishers are going to take the position that “Work” is broader than the category “books” and includes books. “Work” may also include blog posts, short stories, and nonfiction articles. In this rapidly evolving world of digital multimedia, “Work” could also mean video content, podcasts, even PowerPoint presentations.
- “[A]ny other publisher” is not limited to traditional publishing companies. It also means you, as a self-publisher, or a colleague with respect to a guest post on their blog, for instance.
- If you write in a particular genre, this part of the clause could prevent you from writing another novel in your genre. This would preclude you from writing in the same genre even using a pen name.
3. “. . . without written consent of the Publisher which shall not be reasonably withheld . . .”
What you need to know:
- When authors raise the oppressive nature of the non-competing works clause with the publisher before they sign the contract, the representative of the publisher with whom the author is working often points to this phrase and says, “It’s never a problem. We’re not unreasonable and always give permission for other works.” If that’s the case, then the clause should come out of the contract.
- Imagine having to request the written permission of your publisher every time you wanted to write a blog post on the same subject matter as your book.
- Worse still, imagine having to ask for permission every time you want to write something that will make money for you. A publisher should not be in the position of controlling your income arbitrarily with this clause.
4. “. . . that would, in the reasonable opinion of the Publisher, be likely to interfere with or injure the sale of the Work . . .”
What you need to know:
- This part of the Non-Competing Work clause inextricably binds your income-producing future to the whims of the publisher. It is the publisher’s opinion whether your proposed western romance will injure the sale of your sci-fi thriller in which the protagonist has a love interest, for example.
- You cannot count on a publisher to be reasonable. Here’s a story from an author whose (then) Big 6 publisher thought that she breached the non-competing works clause of her contract by self-publishing a collection of short stories (some of which the publisher had already rejected!): Sleeping with the Enemy: A Cautionary Tale. In short, they terminated her contract and demanded the return of her $20,000 advance.
As a rule, I am not fond of the Non-Competing Works provisions in publishing contracts. The clause discussed in this post is just an example of one such provision. These provisions come in a variety of flavors, most of which unreasonably restrict a writer’s ability to make a living. With very limited exceptions, I recommend against signing contracts that contain these clauses.
I’m always interested seeing terms different publishers include in their contracts. The industry is changing rapidly and publishing houses are struggling to keep up. Their contracts tend to lag behind industry trends.
If you have a contract term that you would like explained, leave a comment. Or if you would like to keep it private, send me an email kgoldman “at” charmcitylegal.com. I’d be happy to give you my best answer.
Just a reminder, while I am a lawyer, this post is not legal advice on any specific contract. I believe legal information for writers should be affordable and accessible. This post is an attempt to educate you as to what the terms of a contract mean so you can decide whether you should negotiate for something different. Remember, nothing is standard.
Kathryn Goldman is a lawyer who protects writers, artists, filmmakers, and businesses from having their work and art ripped off. Since she’s a lawyer, she has to mention that she’s not *your* lawyer (so this article isn’t technically legal advice, just educational), but you’re still invited to download her Digital Artists Rip-Off Protection Report. You can also follow her on Twitter @KathrynGoldman
Thanks again, Kathryn! These posts have helped me better understand a publishing contract and all that goes along with it. I’ll look forward to having you come sit on the porch with me sometime in the future.
In case you missed Kathryn’s previous articles, here are the links: