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.
This doesn’t really have me shook;
don’t think I’ll face ‘no competition’,
but what if pub house of my book
wants to launch a new edition?
Does that mean they have a lock
on my subject, evermore?
This would be, yes, quite the shock,
that I could not further explore
the history of the Martian zombies,
my seminal and well-loved tome,
marching with the Allied armies
to instigate the Fall of Rome,
for which the footnotes by themselves
deserve fresh space on bookstore shelves.
As the author of 3 books by major publishers (in the crafts genre), I look at it from a different perspective. I was able to bundle several projects (quilts/patterns) from magazines and include with new ones for my first book. Magazine contract didn’t have this clause. Second book I did the same, though not as many (book with 22 projects sold for $27.99 retail). But by the 3rd book, the issue was plain from a different perspective – royalties! So, I can understand the author wanting to self-publish on Amazon. That $27.99 book was $14.00 wholesale. My royalties were 10% of wholesale, hence $1.40 per book! There is a STRONG market for quilt patterns within this genre. I make more money self publishing my patterns one by one from that book! Average price of $7.00, with 10% fees paid to online platform. As the author of over 1,000 quilt patterns (in 30 years, btw), this is workable and profitable – but I sure learned a lot from having those 3 books published! And my contracts are another story for another time – hint: Work for Hire.
You found a niche that works for you. Great!
But not everyone can replicate that success in their niche. That is the problem of comparisons in that they are not direct apples-to-apples.
Your story wouldn’t necessarily be replicated by a novelist. Or a non-fiction author of Cajun Cooking.
But that’s not the topic today. We are discussing non-compete clauses in traditional book contracts. 🙂
Thanks for explaining this, Steve. I guess it’s always best to ask if you’re not sure, right?
And I chuckled at the six novels in one year. Even three! Goodness, how does an author develop characters and storyline that isn’t weak? I know I can’t do even one novel in a year. I can write it, but the revisions! When we rush through revisions, we make mistakes, I think.
I only have one novel published, as I’m mostly a children’s book author, but even my picture book manuscripts are not something I want to rush through.
Kristen Joy Wilks
Thank you so much for educating us about the reasons behind this part of a book contract! I can see why authors seek out an agent to help them in these situations.
Thanks for this. I knew what noncompete clauses were, but never considered they would apply to writers.
I’m curious what happened in cases like Gary Chapman’s Love Languages book which then went on to have versions for singles, children, teens, men, and so on. Or Stormie Ormatian’s Power of a Praying Wife, then a Praying Husband, Parent, and Grandparent. I wonder if publisher gave permission or if the audiences were different enough for each version of their books that competition wasn’t a problem.
Given that both cases cited are books published with the same publisher. Thus it was the publisher’s decision to expand the brand with their bestselling author.
It’s not competition when you are doing it to yourself.
Thank you for your balanced presentation. What about movies based on the book? Do publishers consider movies competition or a boon?
Movies do not compete with books per see.
Movie rights are licensed and are based on the book. Not direct competition with the book.
Often the book and movie are so different as to be almost unrecognizable. There are some famous lawsuits about that issue.
Thanks, Steve. Ideally, I’d like to have both come out at about the same time, for strategic reasons. (I dream big.)
I have a historical novel ready for publication and was thinking of publishing my research as a nonfiction book. It is already on my blog.Do you think most publishers would have a problem with this?
You’d have to ask the publisher.
Sometimes it’s an issue of publishing a separate book that doesn’t sell. That then tells the market that your selling power has limitations. Thus the danger of self-publishing when trying to pursue and lure the biggest publishers to your work.
Thank you for sharing this inormation with us, Steve.
This is great information, and another reason author’s benefit from having an agent in their corner.
I assume novellas or short stories written to promote the main title are exempt because they aren’t book-length and are generally used to stir up hype about the book itself?
Great post – all this information is extremely helpful! I remember sitting in one of your classes on contracts at the BRMCWC, and I was shocked at all the issues that could potentially arise within a written contract. The pointers you provided then, along with the information you’ve presented here, have definitely opened my eyes. Thanks, Steve!