Traditional Publishing, Non-Compete Clauses & Rights Grabs

DISCLAIMER: I am going to say some tough, true things in this essay. It’s not NEW stuff, but stuff that writers talk about a lot in the bar at conventions on in email with one another. This is not meant to be a jibe at any publishers I’m currently working with (well, except the usual one, and they know who they are). These are general industry issues on the minds of many writers that I think we all need to talk about publicly for newer writers coming up after us. So let’s get to it! 


If you love something, let it go. 

If it returns to you, it was meant to be. 

If it does not return, it means it thought your relationship was pretty shitty and it’s really happy to never see you again.

When you’re a new writer, you mostly talk to other new writers about craft. Once you publish a book or two, though, you’re increasingly talking to your peers about the business of writing and publishing. You talk about contracts and foreign rights deals and rights grabs and the benefits and drawbacks of self-publishing and being a hybrid author.

One of the big issues we’ve been dealing with the last 15 years or so as self-publishing has become more popular are the increasing rights grabs and non-compete clauses stuck into the boilerplate from big traditional publishers terrified to get cut out of the publishing equation. Worse, these clauses are becoming tougher and tougher to negotiate at all, let alone get them to go away. Worser (yes, worser) – many new writers don’t realize that these are shitty terms they should be arguing over instead of just rolling over and accepting like a Good Little Author. What I’ve seen a lot in my decade of publishing is new writers on the scene who don’t read their contracts and who rely on their agent’s judgement totally (and that’s when they even HAVE an agent! eeeee). They don’t have writer networks yet. They aren’t sure what’s normal and what’s not and they don’t want to rock the boat.

I am here to tell you to rock the boat.

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We’re seeing many publishers turn their backs on nurturing mid-list authors to champion quick-hit books. That’s not new, again. We’ve seen the squeezing out of the midlist for thirty years. It sucks. There’s very little career-nurturing. You have to prove your mettle in the small presses or write something insanely marketable the first go-round just to break through. Folks should note that my career required me to start out at the smaller presses and work my way up. It’s been difficult. I had to prove myself, and I had to have editors who championed my work at the big houses, and a great agent who wasn’t afraid to take it to market. It’s been a slog. It didn’t happen overnight. And I’ve learned a lot along the way. And if this stuff tanks this year, getting up is going to be hard (so buy my book, etc).

This reluctance to nurse mid-list careers is bad news for writers who want to go the traditional publishing route, especially as it’s happening at a time when many editors are overworked and marketing budgets continue to get slashed and advances continue to tumble. If you’re a new author in SFF, don’t be surprised to get a first offer of $5,000 that demands your first-born child and everything you and they will ever write, and if you sell just 3,000 copies, well, sorry, we’re done with you and maybe go back to the small houses or come back to us with some vampire erotica we can sell.

Why does this all matter, though, and can it be fixed? Is traditional publishing just doomed to offer us less and less while taking more and more? What can we do to combat it?

Let’s break this down.

Non-Compete Clauses (yes, really)

Folks in self-publishing lose their minds when they hear about these clauses in traditional publishing contracts, and let me tell you, that was pretty much my reaction when I encountered my first one, too.  Though writers have been seeing these clauses in big house contracts for some time now, we still laugh and hork and yell bullshit at this clause because that’s exactly what it is: complete bullshit.

You should be fighting these too.

Non-compete clauses ask a writer to take an advance of $10,000 or $20,000 or whatever and prevent them from having any other novel-length work come out for a full year (or more!) before and after the book is published by that house. Sometimes this is “only” six months before and after. Sometimes it’s “only” novels in a related genre or can be negotiated to “only” novels in the same world. But it’s always awful and you always have to yell hard about it to get it wittled down to something manageable. In truth, this shit should not be there at all, but know that you CAN rub away at it if you insist.

You can see the huge problem with these clauses immediately, of course. Last year was the first year I’ve made what I’d consider a living wage from writing, and to achieve that I had to turn in three books that year.

Clearly I was able to negotiate this clause in my own contracts because I’ve got two books coming out next year (though note that I’m an established author and the books are coming out in different genres), but let me tell you that I about threw my shit out when I saw my first one of these because when you see something in writing your first impulse is to believe that it’s set in stone and impossible to change. I think these things should be thrown out all together, but until then: fight it.

For authors who write four books, or eight books, or more a year, big houses adhering strictly to this clause while paying advances under $50,000 a book would mean preventing most authors from making a living wage as writers (remove agent’s cut, taxes, and health insurance from that number, and yes, friends, that is what I’d consider an actual living wage, not this $20,000 bullshit).

That’s just a fact.

Also of importance is that this clause makes the sort of unreasonable demands on an author that can only be made of an actual employee. You know, someone who gets health insurance and other benefits. By asking authors not to compete against themselves, they’re skirting dangerously close to moving us into the “employee” category that they want to keep us out of.  I have a non-compete clause in my employment agreement at my day job that prevents me from taking on freelancing work that competes with my day job work, and those hold up (mostly) because I’m actually categorized as an employee.

So are we employees or contractors? I’m actually surprised no one has taken a non-compete clause to court, because I think a serious legal inquiry would be interesting.

If you’re stuck in one of these non-compete clauses, the chances of you ever making a living as a writer of purely fiction are slim to none.

The fact that they want to effectively make you a house author without any of the benefits of being a house author – like multi-year contracts and living-wage advances – is even worse.

They need to go, and we all should be pushing hard at them.

Other fun stuff: I have also heard several authors who weren’t able to write related work – from short stories to novellas – featuring the world or characters in their novels, per the contract. That means short stories, novellas, everything. I know writers who’ve had to go argue up the chain of command just to be able to write work in their own world.

Check for this and get it thrown out. Immediately. WTF we are not writing tie-in fiction! WTF is this doing in ANYONE’s boilerplate, I have no fucking idea.

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Rights Grabs

Oh, sure, the boilerplate at a lot of publishers asks for everything: movie rights, TV rights, theme park rights, you name it. But you can mostly get that garbage thrown out on the first pass (YOU BETTER!).

Lots of contracts also ask for comic book rights. When I saw that one I was pretty surprised. Like, seriously? This isn’t limited to big publishers, either. Look at your short story contracts and how many of them include audio and anthology rights now, too. That was unheard of when I first started sending stories out.

Stuffing contracts full of clauses that give publishing houses every right ever imagined is nothing new, as noted. What’s new is how much more difficult it’s becoming for authors who aren’t in the 1% to get them removed.

I’m successful in doing this a lot of them time, but not always, and I’m pretty hawkish with contracts. For folks less confident, or bullish, even with an agent it’s infinitely harder (I love my agent. I still send her back to negotiate things when I’m not happy. That’s the gig).

You should be pushing on this, too.

 

The Fist or the Open Palm

First: I have some great publishers, and editors who have gone to bat for me to make things work. I have great relationships with the vast majority of them. I know it’s a tough business. I know they struggle with it too.HNCK4310-600x400

But their parent companies see us as widget-makers, and they make it tougher and tougher for editors to hold out the open palm instead of the fist. Goodwill with your editor, or “my editor is so nice!” does not always translate to the nitty-gritty of the contract. A lot of those things are determined by the parent company up high, and are negotiated not with the editor but with people in the contracts department. Having a super nice editor who wants the best for you is great, but it does not guarantee there will be nothing but roses in your contract.

See, the big corp parent companies prefer the fist. They’d like to legally tie you to them, condemning you to live in poverty or keep your day job throughout your contract. But what editors and writers would certainly prefer is that publishers provide you with more value that helps make you and the work a success. Publishers who do things that make you WANT to do business with them are going to win over those who make it tough.

But that takes time, and effort, and resources. And so many editors are so short on those that it’s criminal. The great ones have done a fabulous job of helping us along, but their parent companies don’t always make it easy.

Clearly the parent companies, like many businesses today, are choosing the cheaper solution first. It’s way easier to serve up awful contracts than it is to invest in more editorial and marketing support. Better to just contractually bind authors to you because they have no other choice and are desperate for a sale.

But is it really easier, in the long run?

Because here’s the thing. Ruling with the fist ensures you only ever get people who have no choice but to be ruled by the fist. The minute they break out and have other options, they’ll be gone. Either they’ll go into self-publishing or they’ll leave your house and go somewhere else. Maybe nobody will care by then. Maybe the hope is that they get your one breakout success novel and don’t care about the rest.

As writers become better at running their careers like businesses and publishing companies try and wrest away more and more control for less and less money, the truth is that the control that self-publishing offers becomes pretty appealing.  It’s one reason I continue to self-publish my own short fiction, and if you take a look at Patreon, I can basically write 12 short stories a year right now for $18,000 a year, which – if you take out my agent’s fee – is more than I’ve been paid for any single novel as yet (she makes 15% on everything, so at $20,000 for my highest advance, I actually received $17,000).

When you break that shit down and look at the math, it’s pretty wild.

The argument from publishers is that you know, fewer people are reading books. So we have to pay authors less. And I get that. But paying us LESS while simultaneously asking for MORE rights isn’t fair either. And yes, yes, life isn’t fair, this is business, sure – but from a business perspective we need to start thinking about what it is that we’re signing over, as authors, and what our deal breakers are. I’ve finally gotten to the point in my career where I realize that for some projects, no publisher is better than certain deals. I have a day job, and I can afford to turn work down.

What becomes a problem is when every publishing contract is shitty and inflexible, because then you’re left with selling your soul or giving up your dream of publishing, and that’s not a great place to be. It’s what’s going to turn more and more authors who cultivate fan followings to turn to alternative ways to make money and cut publishers out all together.

This is a shame for a number of reasons, the least of which is that there are great editors out there who are fabulous to work with and amazing art departments and marketing and sales teams that can indeed help you and your books level up (if I didn’t believe this, I wouldn’t be doing it). But they, too, are often available for freelancing work, because they aren’t making a lot of money either. They hustle just like authors do. Publishing layoffs and budget cuts mean that if you have the money, you can become an author-publisher and packager and manage this all yourself. You can run your own small publisher for your own work – and there are authors who do that. I’ve talked to a number of self-published writers who got trad publishing deals who – though they appreciated the greater distribution – found that giving up so much control of the process to someone else and then not seeing a massive return was pretty demoralizing.

Championing Books vs. Authors

More and more, editors find themselves in the difficult place of being asked to champion a book instead of an author. While many agents will still sign up an author and work to nurture their career, we’re seeing this far less inside publishing houses whose stakeholders want instant hits, not investments that pay out in twenty years.

What this means is that you see a lot of writers doing what I’ve done: starting out with smaller presses and building sales there before moving to larger houses. It means that a lot of the innovative talent-finding in the industry is done at smaller houses that can call a book a success if it sells 5,000 copies. You see less room for taking a chance on an unknown author at a larger house unless they have an easily recognizable breakout book (and editors who take those chances on people like me are my heroes, but also have to have some strong author hits or cred inside their organization in order to balance the risks they take).

When houses are investing in books and not authors, there’s less impetus to make congenial arrangements in contracts. They are buying widgets, not nurturing relationships, and every widget is a potential golden goose. The trouble comes in when authors break out and want to move on because they were treated like shit in prior negotiations. Even if you work hard to “fix” contracts going forward, authors don’t forget shitty treatment. We don’t forget that you didn’t give us those royalty rates the first time. We don’t forget how inflexible you were when we were no one.

So Where Do We Go From Here?

Honestly, I don’t know. As an author, I’m diversifying my income, and I’m working with multiple publishers to see what sticks. The 13-book Scalzi deal was an interesting development in publishing, and one I’d like to see more publishers consider. If you’re going to treat me like an employee, I should have the benefits and stability an employer offers, and a minimum income. Otherwise, we need to find ways to make these arrangements look far more like what they are: licensing agreements, and not indentured servitude.

I, for one, am continuing to monitor my contracts like a hawk and pushing and negotiating as I can. Remember that what you see in a contract is never, ever set in stone. I’m working to improve my sales and my reputation to make investing in mycareer less of a risk and more of sure thing that can help me bring more leverage to the negotiating table. But that doesn’t help writers coming up behind me, and more and more, that’s what I’m concerned about. I don’t want writers coming up behind me to think that what they see in their first or third contract is just normal and we all accept them. We’ve pushed back on and negotiated language in our contracts, and all writers need to be doing the same across the industry, until clauses like these non-competes become contested and thrown out so often that they become moot.

Fight them. Discuss them. Push back against them. If you can, and it’s a deal breaker for you, walk away and build something else and come back when you have more leverage. The more of us push the better it will be for all of us going forward. We can’t talk about creating a business that supports more writers and more voices while simultaneously making boilerplate worse and constraining them and their business choices with increasingly restrictive contract language.

Getting a book accepted for publication is, I’m sorry to say, the second easiest part of this business (the easiest part is writing the book. Sorry!). The truth is that an acceptance is just the first step in your career. To stay in the game you need to make smart business decisions, weigh your choices, partner with the right agent(s) and editor(s) for your work, and get business savvy. That means reading, understanding, and pushing back on your contracts.

These are the worlds and characters you built. Ensure they are doing what they need to do to power your career, instead of constraining it.

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