The very first time I read a noncompete clause in a friend’s publishing contract, I had to reread it—not just twice like we all should—but a few times. What exactly do publishers want and what are authors agreeing to? How important is this clause to authors anyway?
Noncompete clauses are also called competing works clauses or conflicting publication clauses. In simple terms, noncompete clauses restrict the right of an author to write or publish another book that is similar to and would unfairly compete with the sold book. Almost all publishing contracts include a version of this clause, and publishers are well within their rights to have the exclusive right to the book the author has entered into a contract with them. But the clause must be fair and authors should check that the clause is not overly restrictive.
For example, if an author writes romantic suspense and sells it to Publisher X and there is a noncompete clause in the contract for eighteen months prior to or after publication of the work, the author may not publish another romantic suspense to Publisher Y until the eighteen months are over. With the increasing number of hybrid authors who are both traditionally publishing and self-publishing, the noncompete clause can be overly restrictive and tie up an author for months or even years.
Some publishers are progressive and they realize that a prolific author who wishes to traditionally publish and self-publish can only help sales, not hurt them, and they are more lenient with the noncompete clauses. Others may not be as progressive. Publishers are definitely entitled to have the exclusive right to the author’s book, but at the same time, the noncompete clauses shouldn’t be overly binding.
So how can an author negotiate overly binding noncompete clause? Here are some concrete examples.
Limit the definition of “compete”
Try to replace the language that says “might” interfere with sales and use “will” interfere with sales instead. The publisher is overreaching here. The publisher’s rights are still protected with the word “will” rather than “might.”
Limit the definition of “competing work”
Try to limit the definition of “competing work” in your contract. The more specific the language of “competing work,” the better for the author. For example, you can attempt to limit the clause to “a work with similar characters or title as the contracted work” or “a series military romance with Navy Seals.” This allows the author to publish or self-publish a long contemporary romance with firefighters and not violate the clause. The different genre wouldn’t be competing with the military romance novel and would free the author to make more income in an increasingly crowded marketplace.
Limit the publisher’s time in a noncompete clause
Try to limit the publisher’s time in a noncompete clause. A contract shouldn’t give a publisher an unlimited time period. That’s overreaching and not necessary to protect the publisher. Examples of unreasonable time periods are: “as long as the work remains in print or electronically,” and “for the term of the copyright of the work.” Yikes! These sound bad, don’t they?
In a perfect world, the author and publisher will work together to have a fair noncompete clause for today’s constantly changing marketplace.
So have you ever heard of another way to effectively negotiate any type of contract? What’s your best tip? I’d love to hear your views, so please share!
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