Many authors want “C” to stand for coffee or chocolate since both seem to be must-haves for any writer. Instead, I’m going to fudge a little (pun intended) and write about the noncompete clause in your contract. This clause has long been a playground for negotiations.

Here is a simple version of a noncompete clause:

The Author will not publish or authorize the publication of any other work which would adversely affect the sale of the Work without the Publisher’s prior written consent.

Seems fairly innocuous, and it is. This publisher is basically saying, “Don’t write another book similar to this one.”

Take a look at this language from another publisher’s contract:

Author will neither publish nor authorize the publication anywhere of any Competing Work, including any Competing Work co-written by Author, in any form equivalent to a Physical Version, Digital Version, or in any form hereafter devised. A “Competing Work” shall be any work on the same or similar topic contained in the Work, treated in the same manner and depth, and directed to the same audience.

Imagine you have written a book about anger in the workplace and then later want to write about anger as a parent for a different publisher. Are those “competing” works? Would the second adversely affect the sale of the first?

Now take a look at this noncompete language from a third publisher:

Author agrees he will not undertake without the written consent of Publisher to write, print, publish, produce, or cause to be written, printed, published, or produced (alone, in conjunction with others or through any other arrangement) anything for publication in book form before the work has been delivered. Author will not, without written consent of Publisher, write, print, publish or produce, or cause to be written, printed, published or produced, during the continuance of this Agreement, any other edition of said Work, any work derived from the Work, or any other work in any form tending to compete or interfere with or injure the sale of the Work in any manner.

Each succeeding example above becomes a little more complex and a little more protective. What is the publisher trying to protect? Why has it becoming increasingly more complicated?

Over ten years ago I read about Kiana Davenport who had signed a deal to publish her novel with Penguin (before they merged with Random House). The publisher found out she later self-published some short stories on Amazon.com (after signing her contract with Penguin) and declared her in breach of her contract under the noncompete clause, cancelled her contract, and demanded the advance be returned. (Her story is found here.) She later signed a new book deal with Amazon Publishing.

It is unlikely that same scenario would play out the same way today. The industry is less “frightened” by indie publishing. But it was an early case in point of the dangers related to noncompete clauses.

Among my many stories, I know of an author who was under a long-term contract with a publisher but needed to find a new source of writing income. The author went to the publisher to ask for permission to pursue writing elsewhere because the current publisher could not publish the new material on top of their current projects. The author was told no. And the author was stuck. (Using a pen name wasn’t an option for this writer.)

Another author was in a similar position but didn’t ask the publisher; instead, they asked their agent for advice. The author wanted to send out new book proposals to the industry and shop for an extra source of income despite the fact that the new proposal was a historical novel and the current contracted books were also historicals (different time periods but still historicals). The agent said that would not be a wise course and suggested some other viable alternatives. The author was very upset.

Another author told their agent, “I have some old manuscripts in my drawer. I’m going to toss them into the Kindle format and upload them myself and see what happens.” The agent was concerned about this cavalier approach and their difference of opinion made itself evident.

These three examples all speak, in part, to the issue of noncompete.

What Is the Publisher Protecting?

Originally, the noncompete clause was there to prevent the author from writing the same book twice and publishing it with two different publishers.

That is not the only concern now. There is a reasonable desire by the publisher to protect a sales window around the release/publication date of the book, so the market is given a clear shot at this one title from this one author. They are, in essence, protecting their investment in the launch of that book. They want the full attention of the author in promoting that book around its launch.

Another concern is the ease of digital self-publishing. The author with the manuscript in the drawer could end up competing with their new traditionally published book and thinking it’s not a big deal.

Imagine a situation where the author’s independently produced e-book was being sold for $3.99 while that same week their new release from the major publisher was being sold for $15.99 in paperback and $12.99 in e-book. (Let’s not get into a debate about $12.99 e-books; that is a different discussion.)

What Is the Author Protecting?

Some authors kick against these restrictions, especially if they are prolific writers. Some claim this is a form of restraint-of-trade. And they have a point. If an author can create six new novels a year, there are few publishers who can handle that output. Even three a year is a lot for some major houses to market properly.

Sometimes it isn’t the publisher who is slowing the author down. It is the stores who resist the frequency of books from one writer. I know of one author whose publisher was told by a number of key accounts (like Barnes & Noble) that they were not going to buy the author’s newest book because the previous one had come out only three months earlier. The publisher’s release plans were stymied. Granted, the online stores don’t seem to care as much.

The author is protecting their artistic freedom and fiscal freedom to earn a living. If the full-time author receives a $15,000 advance from the publisher and writes one book a year, that is equivalent to $7.21 per hour (for the typical 40-hour week) before taxes and expenses. (Current federal minimum wage is $7.25 per hour, while in some states it is moving toward $15.00.) Obviously, the math makes writing full-time a challenge. If the publisher uses the noncompete clause as a hammer in this situation, the author is in a tough situation.

If that same author is receiving $15,000 advances and writing two books a year, the picture is different. But if the publisher decides to slow down the publishing schedule for whatever reason (like a pandemic and supply-chain issues), the author’s income is slowed as well (a fact many publishers forget in their in-house deliberations).

What Is the Agent Protecting?

We represent the interests of the author. Period. But at the same time, we understand the interests of the publisher and work to find a solution that works for everyone. We work on this clause on nearly every contract we negotiate. Does this mean we can get that clause removed? No, but we can find ways to limit its scope and still satisfy the protection the publisher desires.

James Scott Bell put it quite well in the comment section of this blog many years ago: “A good, fair non-compete clause is essential for both parties, and I think can be worked out in most cases.”

What about Nonbook Projects Like Magazine or Online Articles?

The publisher’s noncompete clause refers to book-length projects, not magazine articles. A simple way of thinking about it is that magazines do not compete with books. The consumer is buying the magazine as a whole, not necessarily the author whose work appears in that magazine. However, make sure there isn’t a noncompete clause in your magazine or online agreements.

This is can be a volatile topic. I hope my attempts here have helped you understand this area a little better.