Friday, February 02, 2007

Agenting 101 Revisited—No Compete

STATUS: It’s colder in Denver today than in most of the cities in Alaska. That’s just wrong.

What’s playing on the iPod right now? SWEET LOVE by Anita Baker

Get out your notebooks. I was a little too cryptic earlier this week. So let’s talk about the no-compete clause and the Author’s Warranties in publishing contracts.

A little background. Publishers like to include a little clause that is usually called something like “Conflicting Publication” or “Competitive Works” in their book contracts.

To sum up, this clause will usually say something like this:

“During the term of this Agreement, the Author shall not, without written permission of the Publisher, publish or permit to be published any material based upon or incorporating material from the Work or which would compete with its sale or impair the rights granted hereunder.”

Fair enough.

But then the publisher likes to continue. The real crux of this clause is in the next section that will state something along these lines:

“Subject to the terms above, the Author agrees that in no event will the Author publish or authorize publication of any other book-length work of which the Author is credited under his/her own name as an author, contributor or collaborator until six months after the publication of the book under this agreement.”

Therein lies the problem if the author wants to have a prolific career. This clause would severely limit the variety of books the author could publish at any given time (if they have to wait 6 months after the publication of the book in this agreement or their other agreements). Just imagining the scheduling conflict alone is enough to give me a headache and if the author writes nonfiction as well as fiction or young adult as well as adult novels… you can see why this clause would inhibit a writer’s career.

So, agents limit the clause. “Any other book-length work” is too open-ended. We dig in and start defining that book-length work. Now how we define this can vary depending on what the author writes, what they have going at the time, and what they plan to write in the future. If the author already writes in let’s say an adult genre but now we are doing a contract for YA books, we force the publisher to acknowledge their upcoming adult books in this clause as well so it’s clear that even though those books are out on the shelves at the same time, they aren’t “in competition” with the book in this contract.

Why do publishers bother? They want to protect their investment and not have a diluted market when releasing their book. That’s the argument I’ve heard anyway.

Of course what’s not taken into consideration is the synergy and buzz that can be created when an author has multi-books out on the shelves at the same time.

You can probably also see that the bigger the author is (i.e. Nora Roberts or Dan Brown) the less of an issue multi-books become because there is room for all with his or her avid fan base. The no-compete clause becomes a moot point of the publisher wants that author on the house list.

We’ll tackle warranties on Monday. This is a too brain-taxing way to end a Friday. Happy weekend folks.