Remember last April, when I covered an article suggesting that publishers could use no-compete clauses to keep writers from publishing backlist e-books? At the time, I hadn’t thought it was the sort of thing a publisher would actually do, but the latest blog post by author Kristine Kathryn Rusch tells another tale.
Rusch warns her readers against several sneaky tactics publishers use to slip no-compete clauses into their contracts. These clauses often say that the author will not publish any “competing” works, or any other works for a specific period of time, without written permission from the publisher.
The net effect is to prevent the writer from writing anything else without the publisher’s permission. Since the first part of the clause goes for the term of the Agreement, and the term of the Agreement is often dictated by sales, then that means that for a writer whose book (under this Agreement) becomes a bestseller, this writer will always have to ask his publisher’s permission to write anything else—including blog posts.
While lawyer Passive Guy doubts such a clause would hold up in court, testing it would still require plenty of money, time, and grey hairs, so best not even to get into that situation. We’ve already covered writer Kiana Davenport, whose publisher terminated her contract and demanded a return of her advance because she self-published unrelated works on Amazon.
Rusch emphasizes that authors should be willing to walk away rather than sign a contract with terms they don’t like. She cites the example of Carrie Vaughn, who changed publishers in the middle of her popular Kitty Norville urban fantasy series because her old publisher wanted to restrict her from publishing other books under her own name.
Publishers are increasingly turning to this sort of restrictive language, Rusch notes—Vaughn’s publisher was unusual for demanding so much control over its writer’s works then, but everyone is starting to use those clauses now. She believes this is because they are feeling the pressure from non-traditional means of publication.
Rusch feels that writers should be willing to explore other options rather than give up control over the future of their careers to publishers who don’t necessarily share the same goals—so if publishers refuse to remove that restrictive language, they should find another one, or go the self-publishing route.
Given that most writers don’t tend to be lawyers (and Rusch admits she’s not one herself, but she’s done a lot of study of these contracts in self-defense), this sort of warning could be important to more and more up and coming talent these days. The question is whether writers will be inclined to take her advice.