Right of First Refusal Question

Hypothetically, this depends entirely on the precise wording of the contract, and what kind of out clauses are there (because there are some, right?). Is this only for series books, or for all books by the author?

Hypothetically, I would advise anyone who signed such a contract to consult with their agent or a contract attorney.

Ah, so this isn't signed yet.

I'd be inclined to check out the publisher in Bewares, or on Writer Beware. All future books sounds like way too much of a land grab for my taste. Even all future series books sounds like too much to me - but get a response from a professional (and I'd suggest a publishing professional, not just an attorney).

JohnnyGottaKeyboard said:

if you signed a contract with a publisher for a YA book granting them right of first refusal on future YA books over a certain length while the contracted book was in print, they then "refused" to continue a YA series they had previously published, would that series be free to shop to other publishers? I know the next book in the series, the one they actually "refused" would be free to shop around, but what about subsequent entries? Say if the series grew more lucrative? I feel that the new publisher (who picked up the series) should have all subsequent rights to the series. Does everyone agree on that?

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No, I don't agree on that.

It depends on what the whole contract says, as it's impossible to be sure you've got the right meaning when you refer to contractual clauses in isolation: but if the contract says they have rights of first refusal on all subsequent books while the contracted book is in print, that means ALL books. So if they refuse one, that doesn't mean any further books are free to go elsewhere.

Also, if a publisher has the first books in a series, other publishers are not likely to pick up subsequent books in that same series. It's not often done.

Now, to complicate the matter further: what if the first publisher (the one who published the first part of a series and then refused to continue) contracted a new YA book with me (totally unrelated to the series) but inserted in their new contract language right of first refusal on all subsequent YA works over a certain length?

That sounds confusing to me, and it's my HYPOTHETICAL question.

I would love some advice...er, conversation.

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If the new contract specified they wanted first refusal on "all subsequent YA works over a certain length" then that's what they get. That would include books in the original series.

This is why you negotiate contracts to make anything like this very tightly limited. It's reasonable for them to want to take further books in the series. It's not reasonable for them to want all your future books, which is what this looks like to me (it reminds me of the dreadful demands Zharmae makes on its authors' future books).

JohnnyGottaKeyboard said:

Thanks. I have no agent (hypothetical or otherwise), and let's say my hypothetical attorney is the one who pointed out the potential conflict. He hypothetically suggests asking the publisher to insert the phrase "except the <<series name>> series of books". Which sounds good and I shall, hypothetically, do so on Monday. I was just wondering if anyone else had encountered this and maybe should tell me I shouldn't freak out over hypotheticals.



ETA: I neglected to answer your question. The new contract requests right of first refusal on all YA books over a certain length (10k) by the author while the contracted book is in print.

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I don't think your attorney's amendment is a good one.

Allow them first refusal on the next book in the same series. Don't allow them a right of first refusal to ALL books in your series (that will be covered in the contract for the subsequent book). Don't allow them a right of first refusal to any of your other books: just the next one in the series.

Sage said:

Is this hypothetical publisher the type that would get an agent excited if you were to send out a query to your favorite agent with the words "publication offer" in the subject line?

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That's my thinking. I am very uncomfortable with the demands they're trying to make on you, and your attorney is not giving you the best advice. An agent would fight your corner.

Just to clarify - are you being offered a new contract for Book 1, to put it back in print? And this is where dueling ROFR and subsquent book rights is coming up?

I'm with the others - if you can possibly get an agent involved, do so. Unless your attorney knows the publishing business, they're unlikely to be familiar with the norms of these agreements. They can explain to you what you're signing, but they won't have a good sense of whether it's in your best interests or not.

Subjectively? I'd personally be inclined not to sign away rights to any future books. I could see ROFR fo the next one in the same universe, but no, I'm not going to sign away rights on random stuff I haven't produced yet (unless there is a big, friendly financial commitment on the other side, and some reasonable out clauses).

So you're still (hypothetically) negotiating. This is good.

The publisher may be a very good one, but that doesn't mean you have to sign a bad contract. (General advice I've heard is to NEVER sign boilerplate contracts - unless, of course, they are perfectly wonderful for you, the author, which would be unusual).

Writing is freelance work. Unless they're willing to commit to payment, I wouldn't commit to giving them the rights to your future work. Full stop. Giving them ROFR on the next book (in series, out of series, both, or neither) may make sense for you; I can't say. But if they want the rights to X books, they'd best be compensating you for that commitment. (Example: Last year, SF author John Scalzi contracted with his publisher for another 13 books, but he got a generous advance. And note the number of books is specific, and the contract is time-boxed. This protects both sides.)

Best scenario: Get an agent to help you. Minimal scenario: scour Bewares on this pub. "Everything else you write, forever" is not, IMHO, reasonable without hefty financial protections.

ETA: IANAL, IANA agent, the only pub contract I know is my own, don't take it from me but push for info and proper answers from pros.

JohnnyGottaKeyboard said:

My concern is that if Pub2 takes up my series, they may rightly expect the first chance to publish a subsequent entry in that series.

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If they're not willing to give you a two book contract and therefore license the rights to those two books, then why would you think they have the right to do so?

Either they pay you for the book or they don't.

But how can I have contracts with two publishers both requesting ROFR? That is why for the contract with Pub1 on the new book, we would stipulate that they have ROFR with their limited scope plus the limit that they do not have ROFR for the series they have already declined to continue.

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You can't.

Strike the clause from the contract. Remove their right of first refusal.

Surely other writers have come up against the dilemma of 2 Publishers trying to secure ROFR which is impossible. It is sort of making my head spin.

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I have. I told them they couldn't reasonably demand that right, and so I wasn't going to sign the contract they offered me unless they changed it.

And no, since it's the same publisher I've had for my last two books, and the advance is not particularly life-changing, I don't imagine an agent would be interested.

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Ah.

Have you looked for an agent?

Or have you already submitted this new book to a lot of publishers? If so, there's not much an agent can do for you, I'm afraid.

Writers' organisations often provide their members with contractual advice so if you're a member of any such groups, it's worth asking.

As others have said, the specific answers depend on the wording of the contract, but based on what you've written, it sounds like they could claim right of first refusal on all subsequent books in a series, even if they turn down book 2. You shouldn't sign such a contract. The qualifier "as long as the contracted book is in print" means nothing, since ebooks can be kept in print indefinitely, even if they're not selling at all. This is just rights grab--you needn't and shouldn't go along with it. If you've already signed, you might need a publishing lawyer to advise you.

I know it's hard as hell to walk away from an offer, especially for people who've been trying a long time to break into print. But you wouldn't give away your first child for a deal, would you? You have to protect your ability to sell books to other publishers without hindrance. It's customary and reasonable for them to ask for right of first refusal on your next book, especially but not only in a series...but only the next book.

Barbara R. said:

As others have said, the specific answers depend on the wording of the contract, but based on what you've written, it sounds like they could claim right of first refusal on all subsequent books in a series, even if they turn down book 2. You shouldn't sign such a contract.

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Yeah, the more I think about this, the more it seems like taking a corporate job and promising to never work for another company for the rest of your life, even if the corporate job stops paying you.

Contracts are made to be negotiated. For many years (and it's probably still true), publishers had different contracts for agented and unagented writers, knowing that agents would automatically strike clauses like the one you mentioned. Writers need to be clear on what the deal-breakers are.

Getting an offer from a publisher is also a great time to snag an agent. Just saying...