{"id":6428,"date":"2021-01-29T13:00:00","date_gmt":"2021-01-29T13:00:00","guid":{"rendered":"https:\/\/jerichowriters.com\/townhouse\/articles\/my-little-box-of-annoyances-part-i\/"},"modified":"2021-01-29T13:00:00","modified_gmt":"2021-01-29T13:00:00","slug":"my-little-box-of-annoyances-part-i","status":"publish","type":"post","link":"https:\/\/jerichowriters.com\/my-little-box-of-annoyances-part-i\/","title":{"rendered":"My little box of annoyances, Part I"},"content":{"rendered":"

Every now and then, it so happens that I get to see the contracts offered by publishers to (mostly) debut authors. And, for the most part, they look much the same. Long. Written in Legalish. Needlessly complicated.<\/p>\n

And one-sided.<\/p>\n

For obvious reasons, I most commonly see contracts when the writer concerned doesn\u2019t have an agent. And, again for obvious reasons, publishers don\u2019t feel obliged to play nice if they don\u2019t have someone scary and experienced negotiating opposite them.<\/p>\n

And, look. If I were an unagented author keen to get into print, I\u2019d be willing to sign pretty much anything. Publishers know this, so they don\u2019t exactly try to play nice.<\/p>\n

But you don\u2019t have to sign the contract that is put in front of you<\/strong>. You really don\u2019t. It\u2019s not poor etiquette to negotiate. Doing so marks you out as a smart author, not a difficult one. You just have to know where and how to direct your fire.<\/p>\n

This email will start to give you a map. It\u2019s not a complete map and I don\u2019t know your specific circumstances. So caveat the first is simply that you should get your contract checked out by the Authors Guild (US) or the Society of Authors (UK).<\/p>\n

The second caveat isn\u2019t really one of those modest legalistic qualifications. Think of it more like someone shouting at you, using a bright red bullhorn, from a distance of about eight inches. It\u2019s simply this:<\/p>\n

IF YOUR CONTRACT INVOLVES YOU PAYING THE PUBLISHER, WHAT YOU HAVE IN FRONT OF YOU IS A VANITY PUBLISHING CONTRACT.<\/strong><\/p>\n

AVOID, AVOID, AVOID.<\/strong><\/p>\n

But let\u2019s say you get an offer from a totally legitimate publisher. Maybe a big 5 firm, maybe a reputable independent, or maybe a digital-first imprint of some sort.<\/p>\n

Now, OK, you are probably nice and somewhat uncomfortable with confrontation. Which is fine, but you\u2019re not going to be confrontational. You\u2019re going to be professional. And remember: editors are perfectly well used to literary agents hammering away at every detail of a contract. So negotiate.\u00a0<\/p>\n

With that said, let\u2019s take a look at my little box of annoyances. First up, we have:<\/p>\n

The Right of First Refusal (RFR)<\/strong><\/p>\n

This is one of those clauses that has a perfectly innocent and acceptable idea at its heart, but can quickly morph into a beast.<\/p>\n

The innocent idea is simply this. You and Megacorp Publishing Inc work happily together on your book. It\u2019s published. It sells reasonably well. You write another book. What then?<\/p>\n

Well, it would probably make sense for Megacorp to take first look at your new book and, potentially, make you an offer. If that offer is acceptable, you take it. If not, you politely refuse and take the book elsewhere.<\/p>\n

That arrangement recognises that Megacorp are in the front of the queue, thanks to your prior relationship with them, but doesn\u2018t bind you into a longer term relationship that you may not want.<\/p>\n

That innocent RFR clause, however, turns into a fang-toothed beast as soon as it starts to take on more layers.<\/p>\n

So for example, you\u2019ll sometimes see clauses which say that you may not accept any offer which is of a lower value than that first Megacorp one. Well, why shouldn\u2019t you? Suppose your experience with Megacorp has been universally bad. And suppose that a brilliant and passionate indie publisher is desperate to publish your book. Why wouldn\u2019t you take a lower offer from the latter if you want to? It\u2019s your book, your life.<\/p>\n

Or take another (very common) example. An RFR clause might say that Megacorp has the right to match the top-bid in any auction and walk away with the book.<\/p>\n

Now that might sound almost fair, except that the existence of the clause will kill any auction. If other big publishers know that Megacorp can just swoop in and take your book, their incentive to make a play for it collapses.<\/p>\n

Think of this from the editor\u2019s point of view. To get a firm on board with an aggressive bid for a book, your putative editor is going to have to do a lot of internal marketing, potentially soliciting support as far up as the CEO. It\u2019s one thing to do that if you stand an equal chance of success. It\u2019s quite another if you know you are handicapped from the very start.<\/p>\n

So: the naked RFR is fine. Anything else is a big no-no.\u00a0<\/p>\n

The Non-Compete Clause<\/strong><\/p>\n

Let\u2019s say you are an expert in family law. You have just written The Big Book of Family Law<\/em> and sold it to Megacorp. Megacorp don\u2019t want you selling The Jumbo Compendium of Family Law<\/em> to a second publisher and Divorce for Dummies<\/em> to a third.<\/p>\n

So they put in a clause saying that you can\u2019t sell competing titles to third parties. Then some corporate lawyers look at that clause and point out that it\u2019s a bit ambiguous as to what is and isn\u2019t a competing title, so they add a rider like \u201cwhich, in the judgement of the Publisher, may compete with the Author\u2019s Work \u2026\u201d<\/p>\n

And boof: at a stroke, they give themselves an ironclad protection against you selling work to others.<\/p>\n

The corporate lawyer goes home thinking, \u201cWhat a very clever lawyer I am and how well I have protected our well-stuffed corporate coffers.\u201d<\/p>\n

But you hope to make your living (at least partly) by selling books about family law.<\/em><\/p>\n

So don\u2019t bind yourself. If other rival publishers want to publish books on family law, they will find people to write them. So Megacorp has not, in fact, done anything at all to protect itself from competition. They have just severely curtailed your chance to earn a living.<\/p>\n

Don\u2019t be bound.<\/p>\n

If you are writing fiction, then there just shouldn\u2019t be a non-compete clause in your contract at all, ever. I can\u2019t think of an exception to that rule.<\/p>\n

If you are writing non-fiction, then any non-compete clause needs to be very narrowly drawn \u2013 for example, it might expire after three years, or once book sales have dwindled beyond a certain point.<\/p>\n

Again: a non-compete clause offers almost no benefit to the publisher and it does, potentially, do a lot of harm to you. So just say no.<\/p>\n

The next thing to fly out of my Little Box of Annoyances is \u2026<\/p>\n

Movie rights & other land grabs<\/strong><\/p>\n

A publishing contract is there so that someone with a clear intention to exploit a particular right (namely: publishing your book in all the normal formats) has the ability to do so.<\/p>\n

But Megacorp didn\u2019t get to be the giant corporation is it by being timid. So let\u2019s say your digital-first publisher plans to:<\/p>\n