The Argument of Non-Compete Clauses in Publishing Contracts

The Argument of Non-Compete Clauses in Publishing Contracts

There is an interesting article that I found at the Passive Voice’s blog that I think you guys should check out. I recommend reading it in order to really understand this blog post. In short, it talks about the non-competitive clauses found in some publishing contracts that forbid the author from self-publishing on the side, considering it the author competing against his her own traditionally published book. The article arguing in favor of non-competitive clauses was from Rachelle Gardner, a literary agent I very much respect, but I think she left a lot of holes in her argument this go around because the landscape is very much changing.

A contract with a publisher is not like a contract with an employer. With an employer, you’re often assured either an hourly or salaried wage and receive benefits on the side, like health insurance. A contract with a publisher basically gives the publisher permission to publish your book and do everything to ensure the quality of the book as well as do whatever is necessary to make money off said book. When you sign that contract, you are not signing your writing career to them; you are simply signing your book to them.

Publishers should not be threatened by their clients self-publishing their own books on the side.

Your writing career is your career. Not anyone else’s.

I’m going to find two arguments I find interesting that Passive Voice points out. One is that publishers are afraid that the author will devote more marketing time to the self-published work than the traditionally published work. I suppose there is some legitimacy to this fear, as marketing is the only way a book can be discovered. But at the same time, where a book is distributed is probably 50% of the marketing pie–or more, or less: I don’t claim to be a marketer. Since B&N is a huge book distributor, that traditionally published book is already going to be seen by the thousands of eyes that walk by it. A self-published book, on the other hand, takes a lot more work to market because it is often only ever online or in the author’s local bookstores. So of course they’re going to have to work harder to market their self-published books because that traditionally published book is already being marketed by virtue of being in a chain bookstore. And print sells more than electronic, so it’s kind of  a ridiculous fear. Also, interest in the author’s self-published book will yield interest in the author’s traditionally published book–so in essence, these books are marketing for each other, and the author is receiving a boost in his/her career. And, while I’m at it, the author may not even need to devote so much time to marketing the self-published book because the traditionally published book can be doing the marketing for him/her!

I’m self-publishing those Sister Evelyn installation pieces to give a boost to When Stars Die. So far, my publisher is not threatened by that.

If publishers don’t want authors to publish their own books, then, as is argued, publishers shouldn’t publish other books so they can put all of their marketing efforts on to the author restricted by the non-compete clause. It’s an extreme argument, but it has a good point.

Publishers don’t control authors’ careers. Authors control their careers. A book contract is a book contract, not a contract that makes you an employee of the publisher. If I were an employee of my publisher, the individual books would not need to be contracted.

The next argument I find interesting is this:

The publisher is working hard to position you in the market a certain way, and to maintain a level of quality for which they want you (and themselves) to be known. If you self-publish, they lose their ability to have input into the quality of your work, or the branding. This  can not only reflect negatively on them, it can create confusion in the reader (who sees different kinds of books with your name on them) which can lead to lower sales.

Now I’m not going to be snarky. I very much respect Rachelle Gardner and snark, to me, would mess with that respect. But I will point out that readers do not care who publishes the books. Only writers and publishers and other publishing elites care. Readers are going to be ecstatic to see multiple books come out by an author. I highly doubt they are going to be confused. They might be confused about why they can’t find some of your books in stores, but they’re not going to really care because all your titles are going to be together under your author page. I’m not sure where Ms. Gardner gets the idea that this will lead to lower sales. It’s like saying that me publishing another book after When Stars Die can lower the sales of When Stars Die, so I shouldn’t publish another book for a very long, long time, or perhaps never again. Maybe that is a very poor simile, as the self-published book money goes only to the author and distributor but the traditionally published book money goes mostly to the publisher, distributor, whatever else, and a smidge to the author, but books can market each other!

If I love your self-published book and find your traditionally published book in stores, I am more apt to buy it. So I am speaking strictly as a consumer of books, not a marketing expert (again, I’m not one). If I love one of your books, I’m going to want to keep an eye out on you and see what else you release. Plain and simple.

I would take a gander at the comments too in the linked article. They are very interesting and prove many of my above points.




What to Look Out For to Avoid Scams

What to Look Out For to Avoid Scams

70 years of Penguin design - the logo
70 years of Penguin design – the logo (Photo credit: rich_w)

Penguin and Authors Solutions are being sued for deceptive practices, including the withholding of royalties from writers, breaching contracts, establishing web brands that just lead back to Authors Solutions, among other deceptive practices that have brought about this lawsuit. Forbes wrote about it here.

This incident brings me to the topic of scams and how writers can best avoid them. I am with a partner publishing firm, wherein earnings are split among author and publisher. Your publisher isn’t some mysterious entity, but you actually work with your publisher to produce your book. Partnered firms are also the most flexible among publishing presses because you have control over your cover art (granted it is within reason, as in an accurate reflection of your book and as well as marketable) among other things involved in the process of creating a book. Heck, you can hire your own editor if you want to if you do not like the current press’s edits–within reason. It leverages existing self-publishing options, is much cheaper than self-publishing (you might not be spending anything at all if you choose not to), and you get marketing support to boot. There are no fees involved. I mention all this because someone was curious about partner publishing firms, and I want to talk about some important clauses in publishing contracts when you’re choosing presses that can help you avoid scams. These aren’t surefire ways, as publishers can still run off with your money, but when you sign the contract, and they sign it agreeing to what I’m about to list, you have every right to sue.

For one, when it comes to bigger houses, agents exist for the purpose of helping you negotiate contracts, such as making the copyright yours and being able to get out of a contract if you don’t like how things are going. But if you’re on your own, you’re going to want to know some major things to look out for in contracts that could raise red flags, especially with smaller presses or newer presses.

You deserve to know your amount of royalties, and especially with small presses, you should be receiving more. I would say 50% or more is fair, especially if you’re not getting an advance. Otherwise, take your stuff elsewhere.

You’ll want your copyright, especially if your book goes out of print or whatever that way you can self-publish it and still sell it. This is a big problem among larger publishing houses because oftentimes you give up your copyright, your book risks going out of print, and then once that happens, you can never do anything with that book ever again. Just because a book doesn’t sell now doesn’t mean it won’t sell later, so you deserve your copyright.

Look out for no competition clauses. Some publishers do not want you publishing with other houses because they consider it competing against your own book. Negotiate those or get out.

You should be able to opt out of your contract should you decide that you don’t like how things are going.  If this isn’t an option, either negotiate or get out. It is your book, your sweat, blood, and tears, and so you shouldn’t immediately jump on the first house, agent, whatever, that decides to take you on. You need to read your contract carefully, ask questions, negotiate, and then decide from there.

It is my opinion that no one should use a vanity press. That can save you a lot of grief that people constantly experience going with a vanity press. If you’re going to self-publish, do it yourself. Plus, vanity presses often employ editors who work like they’re in a factory line, so it becomes about quantity instead of quality. And you end up spending more than anyone should have to.

It’s a shame that such a well-known publishing establishment bought out a vanity press that has always been known for scams, but this becomes one of those buyer beware situations. So the above points are just some things to look out for in your own contracts.