Clause By Clause: Non-Compete

Welcome back to Clause by Clause: a series that aims to demystify publishing contracts! Previously we’ve gone over Option Clauses and Force Majeure; today we’re going to talk about Non-Competes!

What is a Non-Compete Clause?
A Non-Compete Clause protects the Publisher’s investment by preventing the Author from putting a substantially similar book on the market that would directly compete with the contracted book and thus negatively impact sales.

Risks
A non-compete clause is not inherently a bad thing. It’s definitely in the Publisher’s best interest to make sure you’re not selling similar books all over the place, but it’s in your interest, too! After all, poor sales mean poor royalties. The risks start to creep in when Non-Competes get overly restrictive in terms of what you’re allowed to do with your writing in the future.

Sometimes Non-Competes don’t just stop you from publishing a similar work, sometimes they stop you from even creating or writing a similar work. Also “similar work” can be pretty broad. What does that mean, exactly? Who determines what’s similar enough to be considered competitive? And just how long does a Non-Compete last, anyway? What if you want to self-publish your next book instead of working with a traditional Publisher? Does self-publishing count as competition? What about co-author projects or short stories? What about blog posts or articles? What if your Publisher doesn’t pick up the sequel to your book and you want to try to publish it elsewhere? Does that count as competition?

The fact is the Non-Competes can be broad, and the broader the reach of the clause, the worse off things are for the Author.

Rewards
Non-Competes are are definitely more favorable to the Publisher than the Author. While it is in the Author’s interest to avoid conflicting products in the marketplace, this is a more serious concern for the Publisher, who has invested money in the book and needs to protect the sales window for that investment in hopes of turning a profit.

Negotiability
Some clauses can be negotiated and some can’t. This is one instance where Authors should really put a foot down and make some serious requests.

  • Time Limit. Non-Competes should not last for the print run of the book or beyond. Three to five years is an acceptable average within the industry. Make sure your Non-Compete is limited.
  • Define the similar work as closely as possible. Specify that it refers to the next book length work, within the same genre, within the same series, featuring the same characters or setting, Get as specific as you can here. The more you narrow the scope of the Non-Compete, the more free you are to continue writing and publishing other things.
  • Specify that the Non-Compete only prevents you from publishing a competing work; you should be free to write and create whatever you like privately.
  • Remember our talk about Option Clauses? Make sure your contract clearly states the the Option Book shall NOT count as competition, so that in the event the Publisher doesn’t pick up the Option, or you can’t come to an agreement on terms, you’re still free to sell that book elsewhere.
  • If you write non-fiction especially, make sure to specify that you have the right to continue to publish articles and blog posts without violating your Non-Compete clause.
  • Delete it altogether. This one is going to be a tough sell, because Publishers do have a legitimate concern, and it’s reasonable of them to want to protect their investments. Many Publishers will negotiate the language in the Non-Compete to be much more favorable to Authors before they’d agree to strike the clause entirely. But Authors have successfully axed this from contracts in the past, so it’s always a possibility.

If you’ve got questions about contracts, or have a suggestion for which clause I should break down next, let me know in the comments!

     

2 Responses to Clause By Clause: Non-Compete

  1. Katie Sep 16 2016 at 9:07 am #

    I really love this series, so thank you so much for writing it! This is all such helpful insight, and it’s great to get a better idea of what things look like inside the industry. Looking forward to the next installment! 😀

  2. Anna Jordan Sep 18 2016 at 11:27 am #

    Love this series. Maybe escalation in royalties or difference between different types of royalties (book club, sale, etc.) Thank you.

Leave a Reply

Time limit is exhausted. Please reload CAPTCHA.