Can authors compete with 'non-competes'?

Image - iStockphoto: Joreks
Image – iStockphoto: Joreks

‘An unacceptable restriction on authors’ livelihoods’

No publisher would agree, at an author’s request, to forgo publishing another author’s book on a particular subject. So why should an author assume a similar obligation? But it happens all the time.

Of all the contract-reform issues being discussed today around publishing and its contracts with authors, the non-compete clause is among the most bitterly derided.

And the “non-compete,” as the clause is called, is the focus of the fourth white paper in the Authors Guild’s Fair Contract Initiative series of articles outlining author contract reform.

From that paper:

Authors are routinely asked to agree not to publish other works that might “directly compete with” the book under contract or “be likely to injure its sale or the merchandising of other rights.” Even more broadly, they may be asked not to “publish or authorize the publication of any material based on the Work or any material in the Work or any other work of such a nature such that it is likely to compete with the Work.”

In digital publishing, the non-compete falls with particularly bizarre force on the author who traditionally publishes, let’s say, a strong science-fiction title. The author then decides that he or she might be able to support sales of that good-looking sci-fi novel with a series of self-published Kindle Singles, each with ancillary background material on one of the characters or settings in the main book.

You’d think a publisher would be delighted, right? Not always. In fact, to hear authors talk about it, hardly ever does a publisher seem to understand the benefit of supplementary self-published work, and the non-compete clause is how the house may try to forestall that supplementary work. The Guild has other examples of instances in which these clause can have peculiar and painful effects:

  • A fiction writer who developed characters for use in multiple works was prevented from using those characters in other books. An author specializing in true crime was prevented from developing a book about a different crime with a different publisher.
  • A non-fiction writer looking to put out a revised edition accounting for newly-discovered facts was prevented from doing so because the publisher didn’t want to deal with the expense; even so, the publisher wouldn’t let the author publish a revised edition anywhere else. (Another reason, incidentally, why we think book contracts should not last forever.)
  • And at least one publisher has even specified that a novelist may not publish another work of fiction on any subject until six months after the work under contract is released—a stunning limitation that could restrict the author’s ability to release new works either with other publishers or independently, potentially taking the author out of the marketplace for several years.

We want to know what you think of the non-compete today in our #FutureChat. Don’t be shy. Wherever you sit on the publishing landscape — author, agent, publisher, editor, reader, designer, bookseller, Authors Guild member, Society of Authors member, Alliance of Independent Authors member, cheese sandwich maker to the writing studio down the street — you’re most welcome to join us and you’ll be competing only with our constructive, energetic weekly exchange of ideas to put your points across. Consider joining us.

This story was written as the walkup to our #FutureChat of 28 August 2015. Join us each Friday live on Twitter at 4:00 p.m. London (BST), 3:00 p.m. GMT, 5:00 p.m. Rome (CEST), 11:00 a.m. New York (ET), 10:00 a.m. Chicago (CT), 9:00 a.m. Denver (MT), 8:00 a.m. Los Angeles (PT), 5:00 a.m. Honolulu (HAST).

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By Porter Ander­son  

The FutureBook: Can authors compete with ‘non-competes’?

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