Industry & Advocacy News
September 23, 2015
A few authors are lucky enough to sign multi-book deals worth six or seven figures. But many more writers, without really thinking about it, tie themselves to unprofitable multi-book deals in the form of one-sided options or “next book” clauses—and they do it for free.
Option clauses in publishing agreements vary, but generally they give the publisher first dibs on the author’s next book. Some options are relatively benign, granting the publisher rights of first look or first negotiation (i.e., the right to see the next book first and negotiate for a limited period of time after reviewing it). Others are never fair, in our view, such as clauses that grant the publisher a right of last refusal (i.e., even if the publisher turns it down at first, it can come back and match any other publisher’s offer) or the ability to wait until after the first book is published, or the second book completed, to make up its mind. Clauses that do so unfairly impede an author’s ability to write and publish.
We get that publishers want their investments in authors to pay off. When a book does well, it may be a credit to the publisher’s marketing efforts, as well as the author’s. In cases where the publisher actively builds the author’s brand, it may be fair to give it the right to further recoup its investment on the next book. But the terms have to reasonable. We have seen too many option clauses that overreach, binding the hands of an unwitting author for longer than she can afford when it comes time to sell the next book.
Option clauses can wreak havoc on authors’ careers. First, and most obviously, they prevent an author from selling her book on the open market and getting the best deal possible. In cases where the first book sold particularly well, unless and until the publisher passes on the next book, an option certainly precludes an auction from developing. And what if the publisher failed to market the first book effectively, or the author was dissatisfied with the edit? The author is left without recourse.
An option can also hold up the author’s ability to get a new advance—a necessity for full-time authors. Particularly egregious clauses require the author to submit a completed manuscript (as opposed to a proposal) of the next book for the publisher’s consideration. To make things worse, they give the publisher way too long to decide whether to publish the manuscript. The author is not permitted to submit a proposal to other publishers until after delivering an entire new book to the original publisher, which is given ample time to review it and, of course, to reject it. This means that the author is writing the entire book without an advance—defeating the very purpose of an advance, which is to provide an author with money to write the book in the first place.
Even worse are options that give the publisher the right to the author’s next book-length work “on the same terms” as the first. That is, if the publisher elects to exercise the option, the author must sign a contract with the publisher with the same provisions and payment structure as the current contract. This completely eliminates the author’s right to negotiate before the next book’s subject matter, length, and market potential are known. No writer should ever agree to such terms.
For absolute intolerability, option clauses including “last refusal” rights take the cake. These, as discussed above, actually allow a publisher to match a second publisher’s offer, even if the publisher who holds the option declines the author’s work initially. We don’t think a publisher should receive even one bite of this apple. But several? That’s crazy. Once a publisher passes on a book, no author should be obligated to disclose any offers received from others to the original publisher.
One Authors Guild member whose option required submission of an entire manuscript spent ten years without any financial compensation while working on a research-intensive non-fiction manuscript (an early advance for the “next book” is almost never part of the deal). His contract prohibited him from approaching any other publisher until the entire manuscript was done—a decade later. It’s preposterous to ask authors to bear that kind of risk.
Fiction writers aren’t immune. A few years ago, a major publisher used a next-book option (together with a non-compete clause, like the ones we’ve called out here) as an excuse to pull the plug on a novel already scheduled for publication. With her agent’s knowledge and blessing, the author decided to self-publish a previously-written but unpublished short story collection in order to make ends meet before the next installment of the advance for the novel was due. When her publisher—which had already rejected the story collection—found out, the author received a termination letter demanding immediate repayment of the advance, claiming that “by ignoring these essential terms of the Agreement and not informing your editor of your intentions, you have not only breached the Agreement, but also demonstrated your unwillingness to work in good faith with us toward the successful publication of the Work.” The novel clearly didn’t compete with the self-published short story e-book. And earlier, when the author presented the publisher with an outline for her next novel, the publisher had insisted on waiting until after the current novel’s release to see how it was received and whether it was worth picking up the next one.
Or consider the romance novelist who took a break from fiction to write a non-fiction book. Her non-fiction contract required her to submit her next book—a romance novel—to that same publisher, despite the fact that the non-fiction publisher had absolutely no experience with romance novels. The upshot was that the author was required to delay submission of the novel to publishers who would actually know how to handle it.
Fair “next book” clauses do exist and may be appropriate where the publisher invests in marketing, but they must be strictly limited. The clause should grant only a right to negotiate with the author for a next book of similar subject matter for a limited period of time. If the author and publisher can’t reach an agreement in that time frame, it is crucial that the author be free to quickly seek another publisher. Additionally, a fair option agreement generally will:
If the publisher wants an option in any other circumstances, the publisher should pay an upfront option fee for it. We recognize this is not an industry practice—not yet, at any rate. But it should become one. A publisher should never have the right to prevent or delay an author from selling her next book unless it pays an additional amount to hold up that work for some period of time, as a film studio would when buying film option rights on a book.
Bottom line: option clauses are almost always in the sole interest of the publisher and not the author. In some cases, the option clause can hold the author’s writing career hostage to the publisher’s schedule for years. This amounts to an unacceptable restriction on an author’s freedom to write. If an author is agreeable to providing the publisher an option, it should be subject to the limits described above.
