An article came to my attention today through my social media feed. It is written by Kameron Hurley and has the title Traditional Publishing, Non-Compete Clauses and Rights Grabs.
In it, Hurley takes exception to certain standard contract terms offered in publishing contracts. In particular, she feels that non-compete clauses prevent authors from making a living wage and that they should be a violation of labor law.
“One of the big issues we’ve been dealing with the last 15 years or so as self-publishing has become more popular are the increasing rights grabs and non-compete clauses stuck into the boilerplate from big traditional publishers terrified to get cut out of the publishing equation,” she writes.
I can assure you, however, that these clauses– including the one most featured in her article– have been around much longer than easy self publishing has. The non-compete, as Hurley calls it, usually comes in the form of a right of first refusal of the author’s next book-length manuscript. In theory this is actually great for the author because it means the publisher will consider putting out another book and the hardest thing in publishing is not the writing but persuading publishers to take a chance on you and your book idea– and this is true whether you have written one or 16 books.
In practice, however, for a mid-list, non-celeb writer to make a living from book writing she must sell at least two books a year and almost no publisher is able to work at that pace. They want to see how the book performed before they commit to your next idea, which means waiting six months to a year for the book to come out, another three or four as per the contract to see how it performs and time to consider the next proposal. At that point, they’re just as likely to say no as yes. So the clause does, indeed, become a barrier to a writer being able to earn a living.
I have had success throughout my career asking to have that clause removed from my contracts. Sometimes you have to persuade agents to ask for what you want, because in my experience they will sometimes say a clause is standard and can’t be changed simply because no one has asked them to change it before.
I would like to play devil’s advocate here for a moment regarding another part of Hurley’s article:
When houses are investing in books and not authors, there’s less impetus to make congenial arrangements in contracts. They are buying widgets, not nurturing relationships, and every widget is a potential golden goose.
Is it not a bit unfair of us to complain on the one hand that we are contractors and should not be tied to a relationship with a publisher, and then to complain that the publishers are not nurturing relationships with us? When we want the freedom to go shopping around for the best deal on every title on our own timing regardless of what the publisher has done for us in the past, we too see every publisher as a “potential golden goose.” The fact of the matter is, the small and mid-size pulishers are struggling to stay in business these days too. I find in negotiations it helps to try to understand the publisher’s concerns as well. Do they really stand to make money from your title? What would need to happen with your book for it to be a gain and not a loss for them?
This old world where writers were nurtured in-house by publishing mentors is something of a myth. It has always applied to a few outliers who we imagine were typical because we so rarely hear the biographies of the mid-level struggling writers of the past.
The independent publishing revolution and ebooks have done a great deal to reduce incomes for writers. But writing has never been an easy profession.
It is understandable that publishers would like to have the one-sided option to hold on to an author who has a hit but not to have to publish another book from an author whose title flops or who has only one book in him. They will ask for what they want if they can get it, just as you would ask for a $50,000 advance if you thought you could get it regardless of whether the publisher stood to make that much on your book.
The truth is there are not a lot of writers out there actually trying to make a living from books, and the publishing industry is built on the premise that writers have day jobs or supporting spouses. Publishers are prepared for negotiations. But the playing field is tilted in their direction because few writers, when it comes down to it, are willing to walk away. We want our books in print– or a payday– more than the publishers need our particular title.