How rigid are non-compete clauses

I don't have any useful information about this, but I did want to say I hope you keep us all updated on this. I just started hearing about these non-compete clauses and would very much like to know what writers are doing about these.

Sounds to me like the publisher is just making sure Michael is not just using them to get his books into store shelves where he may have problems now.

As a publisher, I see no harm in requiring a non-competition clause. They are investing a lot of money, time and effort...

As an author, I may not like this clause and would have to weigh what is my best interest for the long run.

Could I be the ignorant one for a moment and ask what a non-compete clause is?

rsullivan9597 said:

Just received the contract today from a big-six publisher and the non-compete clause was so restrictive I don't see how we can sign. Our agent feel that this was a standard boiler plate that there is room for adjustment on. But I'm not sure "how much" wiggle room there is these days. Bottom line...we want to sign rights to THIS series of books not the right to make money doing new projects but the broad language of the contract could be interpreted that many other future titles would fall into the "non compete" clause.

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Talk to your agent about specific concerns; preferably with hypothetical examples.

Mostly publishers will work with you; for instance, if you have two series of novels, or you also do magazine writing, or you do non-fiction cookbooks . . .

Your agent ought to be able to help with this; it's not uncommon. And publishers are usually pretty cool about it.

kaitie said:

Could I be the ignorant one for a moment and ask what a non-compete clause is?

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A non-compete clause is used in many businesses. For example, if I sold a business making specialized rifles, the buyer might insist that for a certain period I don't engage in the business again, as I might be taking customers away from the buyer.

In the case of publishing, let's say you have a series featuring Frick, the Frack. A publisher would not want you to take that character to another publisher after the first publisher got the series going.

Non-compete clauses can be very reasonable. Other times they can be very unreasonable. Courts have both enforced and denied enforcement of them.

Medievalist has the right approach. Commenting on a non-compete clause without know what the clause is would be as helpful as a hamster writing a novel. As a writer there are some I would sign and others I wouldn't.

Best of luck,

Jim Clark-Dawe

Keep in mind that publishers, and agents, will try to get all they can in a contract.

It's not hostile, or cheating, or greedy--it's just the nature of contracts, which are largely written on the assumption that it's easier to assert than negotiate.

Always be smart, and negotiate. Be reasonable, be fair--but look out for what will work *for you*.

Thanks for the explanation. I've heard of this, but didn't know that was what it was called.

Medievalist said:

Talk to your agent about specific concerns; preferably with hypothetical examples.

Mostly publishers will work with you; for instance, if you have two series of novels, or you also do magazine writing, or you do non-fiction cookbooks . . .

Your agent ought to be able to help with this; it's not uncommon. And publishers are usually pretty cool about it.

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Ditto.

Definitely talk to your agent. That being said, a lot of non-compete clauses will specify certain things. Like if it says 'full length work of romance under Robin Sullivan', you can write in another genre under another name, but not as Robin Sullivan until the non-compete period finishes. A lot of the time the non-compete will also say "until six months after the full body of the work is published" which means all 3 books hit the shelves first, wait six months, and THEN you are done with the non-compete.

There is sometimes some wiggle room, but it depends on the publisher and it also depends on the genre. I know my non-compete was tied to my pseudonym by my first agent (which sucked) so my agent approached other publishers telling them straight up that I was going to have a pseudonym (which I was fine with).

In addition to talking with your agent, you may also want a second opinion from an attorney experienced with publishing contracts. Which will be an investment, $$ wise, but may be a very useful one in the long run.

Best of luck!

Maybe I am confused by this but isn't this bad for a writer? If you write a romance novel and get an advance of 10k and it sells pretty well. Then you write another romance novel and the publishers offer you 10k again, you have no choice but to take it (or not publish the novel). Is that correct? The publisher has all the power.

Tromboli said:

Maybe I am confused by this but isn't this bad for a writer? If you write a romance novel and get an advance of 10k and it sells pretty well. Then you write another romance novel and the publishers offer you 10k again, you have no choice but to take it (or not publish the novel). Is that correct? The publisher has all the power.

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Tromboli, you are confusing option clause with non-compete clause. The option says that you will submit your next work of X to the publisher for them to bid on first. No one says they have to take it, nor do you have to take what they offer (but I believe they can offer to match other houses).

Non-compete basically says that you're not going to release anything else in this set timeframe that will compete with what they are putting out, because then you are cannibalizing your own sales. So you can't put out a werewolf romance with Pocket in January, and then a werewolf romance with Avon in February. Your sales would drop drastically for the January book once the February one hits, and your February one might suffer because everyone already bought the January one. That's the sort of scenario they're wanting to avoid.

Such clauses usually are boilerplate, but they shouldn't harm you in any way. If you have a big six publisher, what more can you ask? If the books sell well here, why would you want to hurt them and yourself by competing against your own books?

You can always write books that don't compete with these, you can always ask for more money, and you can always find a way to leave.

I doubt you'll find a real commercial publisher that doesn't have a non-compete clause, and it's there for your benefit as much as the publisher's.

Jamesaritchie said:

Such clauses usually are boilerplate, but they shouldn't harm you in any way. If you have a big six publisher, what more can you ask? If the books sell well here, why would you want to hurt them and yourself by competing against your own books?

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Actually, this is wrong. The fact that there is a clause in the contract is boilerplate. EVERYTHING ELSE is negotiable.

As to whether or not it can harm you, that's wrong too. It depends on your goals. Do you want to publish more books under the same name in the same genre? Then you need to make sure your non-compete allows that. Do you want to publish under a different name in the same genre? Your non-compete needs to allow that. Do you want to publish varying lengths (say Kindle/Nook/Sony/on your website)without having to go through the publisher first? Your non-compete needs to cover that.

This is a conversation you need to have with your agent. While it's true that I don't know of one person that did NOT have a non-compete in their contract, it is absolutely wrong that this is not negotiable in the slightest. My first non-compete was quite broad and it ended up biting me in the ass. I learned my lesson and got it changed when it came time to sign the second contract.

rsullivan9597 said:

I can't see any way a clause that limits the writer's ability to write to be a benefit to them. It is clearly only a benefit to the publisher.

Now that's not to say that I don't think a "reasonable" clause is a problem but the boilerplate we got could not be signed - and shouldn't be signed by any but the most desperate of authors as it would essentially prohibit future works using the same characters/world forever (unless published by them of course).

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Obviously that clause is a benefit to the publisher. Publishers are in business to sell books and make money. But it's also a boilerplate contract--it's a starting point. This is where good agents are worth their weight in gold. A good agent will get the language in any boilerplate changed in such a way as to benefit their client in the best possible way. <--this is nothing other people in the thread haven't already told you

Newbie authors who don't take the time to research the contract before signing might get burned, yes. But you asked a question, and you got some good answers. The clause can be modified to your benefit.

I don't have my first RH contract in front of me, but my second was modified to include language that allowed me to publish another series with a competing publisher. So boilerplates can be changed.

rsullivan9597 said:

I can't see any way a clause that limits the writer's ability to write to be a benefit to them. It is clearly only a benefit to the publisher.

Now that's not to say that I don't think a "reasonable" clause is a problem but the boilerplate we got could not be signed - and shouldn't be signed by any but the most desperate of authors as it would essentially prohibit future works using the same characters/world forever (unless published by them of course).

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Not to say it doesn't exist, and I obviously have not seen your contract, but I have never heard of an enforceable non-compete that had an indefinite time period. Courts generally frown on non-compete clauses and therefore they have to be reasonably limited in scope. The problem, of course, is you only know that a non-compete is unenforceable after you have spent quite a bit of money litigating whether it is enforceable.

rsullivan9597 said:

shouldn't be signed by any but the most desperate of authors as it would essentially prohibit future works using the same characters/world forever (unless published by them of course).

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It wouldn't be a problem for me, because I don't write in the genres that are conducive to series.

In all they are not bad things, and they are in place to protect both the publisher and the writer. As has been pointed out above, competing with yourself can have a negative impact on your overall sales, and can also create a glut of your work on the market and people can get sick of your pretty quickly.

The clauses that I have seen have been pretty standard and fair enough to be honest. Mostly they have meant that for a set period of time - usually between 1 and three years in those that I have seen - the writer can't put out books in the same genre with another publisher, this safeguards the publishers interest in the book and usually doesn't have a negative effect on the writer as they can still usually work in other genres.

rsullivan9597 said:

Now that's not to say that I don't think a "reasonable" clause is a problem but the boilerplate we got could not be signed - and shouldn't be signed by any but the most desperate of authors as it would essentially prohibit future works using the same characters/world forever (unless published by them of course).

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I have heard of clauses like that, but it's not the norm. None of my contracts limit the characters/world to a specific publisher. Which is good, because they're mine. So I totally understand your concern. I am hoping your agent can get it struck for you.

rsullivan9597 said:

To be honest I totally don't see ANY way this is "good for the author" it protects ONLY the publisher. There is no way having more books out is going to decrease your sales. The most successful authors out there are those with multiple titles...James Patterson's huge success is because he dominates the bookstore shelf with multiple titles relesed in relatively short time frames.

I don't even understand the "sick of you" argument - are you saying they will be happy to buy 1 book a year but if there are 2 books a year they will buy none? I don't get what you are saying.

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Yeah, they might buy 2 or 3 of 5, but will they buy 17 or 20? Is competing with yourself really a good thing? Can you really divide your time up like that? Which book do you promote? What if both books come out on the same day and the publishers want you at opposite sides of the country? Who do you choose? Either way you are going to be screwing yourself.

At the end of the day if you don't like it, don't sign it, it's simple. Only you can decide it.