Industry & Advocacy News
August 27, 2015
Authors must be free to publish the works they want to write. But publishers often insist on terms that can make that impossible. In attempting to restrict authors from competing against their own works, publishers craft broad, harsh non-compete clauses that can unfairly impede authors from making a living. These clauses have to go.
Don’t get us wrong: We get the basic concept. An author shouldn’t be able to take a book under contract with Publisher X, rework it a little, walk it across the street, and sell essentially the same book to Publisher Y. That’s what non-compete clauses were designed to prevent, and when that’s all they actually do, we’re fine with them—although other provisions in publishing agreements accomplish the same thing.
Unfortunately, many standard publishing agreements contain sweeping non-compete terms that can be used to restrict what else an author publishes and when. That’s an unacceptable restriction on authors’ livelihoods in an era when many writers are struggling just to make ends meet.
No publisher would agree, at an author’s request, to forgo publishing another author’s book on a particular subject. So why should an author assume a similar obligation? But it happens all the time. Authors are routinely asked to agree not to publish other works that might “directly compete with” the book under contract or “be likely to injure its sale or the merchandising of other rights.” Even more broadly, they may be asked not to “publish or authorize the publication of any material based on the Work or any material in the Work or any other work of such a nature such that it is likely to compete with the Work.”
Such unfair, open-ended non-compete clauses can prevent an author from pursuing other writing opportunities. If a new project even arguably deals with the same “subject” as the book under contract, a door swings shut and the non-compete can be invoked to prevent an author from publishing elsewhere. For writers specializing in a particular subject, this could be career-derailing.
Academics and textbook writers who spend their careers studying and writing about a particular area of expertise are especially vulnerable. They should not be limited to one book on that subject during their entire careers. But that’s what can happen if the author agrees to a broad non-compete. Take the economist who published a dissertation on oil in the Middle East and soon became a professor and an expert on the topic. Decades later, he came to us when he received an offer from another publisher for a book on—you guessed it—oil in the Middle East. But the publishing contract for his dissertation stipulated that he needed to obtain permission to publish a totally new book on the subject—even though, in the intervening years, the field had completely changed. For an author to have to ask for permission to write about what he or she knows best is outrageous.
We have also seen plenty of non-academics who’ve had non-compete clauses stymie their efforts. A fiction writer who developed characters for use in multiple works was prevented from using those characters in other books. An author specializing in true crime was prevented from developing a book about a different crime with a different publisher. A non-fiction writer looking to put out a revised edition accounting for newly-discovered facts was prevented from doing so because the publisher didn’t want to deal with the expense; even so, the publisher wouldn’t let the author publish a revised edition anywhere else. (Another reason, incidentally, why we think book contracts should not last forever.) And at least one publisher has even specified that a novelist may not publish another work of fiction on any subject until six months after the work under contract is released—a stunning limitation that could restrict the author’s ability to release new works either with other publishers or independently, potentially taking the author out of the marketplace for several years.
Vague non-competes give the publisher the upper hand. Most authors don’t have the resources or desire to get into a legal battle with their publisher, and even if a non-compete would be struck down in court, the author is unlikely to sue. For authors wary of a dispute, or without legal resources to challenge the publisher, the non-compete can keep a book from the marketplace. It can delay publication of a book that’s already been written. It can jeopardize the acceptance of a book proposal made to another publisher. It can and does affect an author’s bottom line. In our experience, if a publisher so much as threatens to challenge its author’s right to publish another work under a broad non-compete, the author is likely to back down. Rather than spend two years and $150,000 fighting it out, better to just write something else.
Ideally, we’d like to see non-compete clauses completely struck from publishing agreements. But we’re willing to accept clauses that simply and straightforwardly prevent an author from publishing substantially the same book elsewhere. Going beyond that can limit the author’s right to make a living, as well as the author’s freedom of expression. That directly contravenes longstanding U.S. legal traditions that favor the rights to work and speak freely.
Non-compete clauses aren’t just unfair in principle; they’ve actually been found to be illegal and unenforceable in most cases. The law in most states disfavors non-competition agreements that limit an employee’s right to practice a trade and make a living. This is true even in the specialized context of publishing agreements, where courts have refused to enforce non-competes that are not clearly and fairly limited in time and scope. So, in the rare cases that authors have dared to litigate, they inevitably prevailed. For instance, when the publisher of a Louisiana-themed cookbook tried to invoke a non-compete to prevent the author, a Cajun cook from Louisiana, from writing another book about Louisiana cooking, the court said “no.” Many publishers, nevertheless, still include and try to enforce broad non-competes.
The ways to appropriately limit a non-compete will vary, depending on the standard contract language and nature of the book. Generally, it can be achieved by (1) stating that the clause applies only to works that “directly injure the sale” of the book under contract; (2) limiting the non-compete to the specific text of the book under contract; and (3) limiting the non-compete in time so that it remains in effect for only a certain number of years (the fewer, the better) and the author is free to write a new book on the same subject when it expires. For instance, we could live with a non-compete that says:
Author agrees that during this first year of this Agreement, Author will not, without the written permission of the Publisher, publish or authorize to be published any full-length work specifically intended to supplant the Work in the marketplace, and which would clearly and directly harm the sale of the Work.
For works of fiction, where the use of any non-compete is even more dubious, it is essential to add:
Author-written prequels and sequels and author created characters are deemed excluded from the provisions of this paragraph.
We think it’s time for publishers to recognize that overly broad non-compete clauses need to be eliminated. Publishers don’t need non-competes to prevent authors from publishing or reselling essentially the same books in repackaged form: Appropriate representations and warranties—not to mention copyright law—will do the trick. Otherwise, the non-compete should be tightly worded so that it prevents the author only from publishing a directly competing book elsewhere for a limited time. Publishing agreements should never be used to prevent authors from writing and publishing new books.
Read more about our Fair Contract Initiative.