Author Advice: The Non-Compete Clause
I’ve been having a great discussion with a new author about the non-compete clause and I thought I would share my thoughts on the subject. Let’s start with the reality of the non-compete:
- Most publishers have one in their contracts
- Most publishers will not remove it from their contracts
So end of story, right? Well, not exactly.
Let’s start with the Publisher’s viewpoint. Look, its tough out there - the competitive nature of the marketplace continues to increase, online content is eating away at opportunities for traditional publishing models, and with nearly 200,000 new books published each year we have enough competition to worry about without our authors pitching in. We need the non-compete in place as a reasonable measure to protect our business interests, and the investments we make in our authors.
And from the Author’s perspective: Look, its tough out there - the advent of blogging, user-generated content and accessible tools makes it easier than ever for almost anyone to publish content. Be it online, in journals, magazines, subscription-based websites or any number of other venues, Authors have many opportunities to write and generate income and can’t be hamstrung by a non-compete clause. Besides, the non-compete is only one way - the publisher can still publish whatever they want so why can’t I?
There are valid arguments on both sides, and I certainly understand both viewpoints. I also understand that Publishers need to continue to create new content models to replace the current ones to remain competitive or even valid in the post Web 2.0 landscape. However, the non-compete clause in today’s publishing contracts is (or should be) considering books and books alone.
If your non-compete clause is so broad that it effectively prohibits you from doing anything around the subject of your book without getting your publisher’s approval, it’s probably too general. The language of the clause may look something like:
The author shall not produce any work similar to the proposed Book that may in the Publisher’s judgment be competitive with or harm the sales of the Book.
Pretty restrictive, huh?
Here is my opinion, and how tend to treat the non-compete in my contracts (my company does allow it’s editors some flexibility in this respect.) I want you writing about the topic of your book. I want you blogging, writing articles for magazines, websites, and any other place you can. I want you speaking at conferences, giving lectures and teaching. Heck, I’ll even grant you the rights to use a portion of the materials from your book in most of these situations as long as you give it credit. Ill supply you with cover images, flyer’s to hand out and in some cases Ill even have a poster or banner made for you for a big conference if it will help you sell your book. I want you to tell the world about what you do, and about the great book you wrote all about it.
But, I don’t want you writing a book about it for someone else. Not exactly like it anyway, and here is where the flexibility comes in.
When dealing with non-compete clauses, ask to work with your publisher to try and narrow the breadth of the clause in such a way that the publisher’s interests are still reasonably addressed, but allows you to continue to do what you do. Discuss the fact that you are really talking about book-length works, not smaller articles. Be sure to mention the work you do on your blog, or in the course of your normal business that you need to address. I have language I can use in my contracts that addresses all of these things as necessary, and I generally rework the non-compete in such as way before I even present it to an author.
Authors should not want to compete with their own books - that’s not good for anyone involved in the partnership. But if you do think you will write other books, or want to be open to other opportunities be sure to discuss that with your editor. For example if you are writing a beginning level book on JavaScript you might want to discuss limiting the non-compete to other beginning level JavaScript books. Could you write an advanced JavaScript book, or perhaps an Ajax title? Maybe, if you and your publisher agree to rework the non-compete a bit, but it has to be agreed upon by both parties.
A publishing agreement should be a partnership, and if an editor is doing his or her job it should be part of an ongoing relationship with the most valuable asset any publisher has - its authors. If both parties are reasonable and understand the other’s viewpoint a compromise can often be made that works for everyone.
By the way, I worked with the new author I mentioned at the beginning of this post exactly as I described above. We now have a non-compete clause that we are both comfortable with, a new book to work on, and a new partnership to grow.
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Comments
Thanks for the feedback Matt. In general I cant argue with your position and certainly agree with non-competes being flexible.
With respect to your JavaScript example we certainly publish our fair share and try to differentiate among them with different series and approaches.
I would not want an author to write JavaScript for Dummies and Complete Idiot’s Guide to JavaScript. However with some flexibility in the non-compete they should be able to write APress’s Pro JavaScript.
[...] book contract with Wiley to write a book on web workerhood under the brand of Web Worker Daily and we had some back and forth over the non-compete clause. While I understand why publishers would include a non-compete clause, I don’t think that [...]
“I would not want an author to write JavaScript for Dummies and Complete Idiot’s Guide to JavaScript.”
Why not? That is probably the worst example you could have chosen. Nobody buys those because of the *author*.
Michael, thats not my point.
It was intended to be a simple, direct example. Both of those books are of similar length, will have nearly identical coverage, are intended for the same audience, and take a very similar approach. They are certainly directly competitive, and are likely 2 of the books a reader would consider buying as an entry point to JavaScript.
My point actually was the second part of the example - Pro JavaScript. If a non-compete is written with flexibility it would not unnecessarily hinder an author with expertise in JavaScript to continue writing on the topic. An overly broad non-compete clause might enable to Publisher to cry foul in my example.
Hi Chris,
What an interesting post this is (and the responses too). As an aspiring writer I found this discussion about the non-compete clause very useful information and I thank you for sharing it.
I went on quite a trip, following the links from your respondents to their web sites, and wrote it up on my blog - my website link takes you directly to the post, ‘The Real Value Of Web 2.0′. I hope you’ll find the time to pop in and have a read.
Best wishes,
Somerset Bob
“They are certainly directly competitive”
Sure. So what?
In what possible way does the same author writing ‘X for Dummies’ and ‘The complete idiot’s guide to X’ harm either publisher (assuming no copyright violation is involved)? The competing book is going to be written no matter what.
About the only way that you can construe harm is in terms of time-to-market, and all you need is a time-limited non-compete to dispose of that concern.
You would have to make the argument that a particular author was uniquely qualified to write a book addressing some topic/audience combination and that denying that author to another publisher for that combination is some kind of tactical advantage.
If that’s the case (and there are such rare cases), the publisher ought to be willing to pay for leaving the non-compete in (which doesn’t happen), or at least be willing to bid against each other to get the particular author (which also doesn’t happen).
I’m certainly glad you are coming out against ‘overly broad’ non-competes, but I disagree with where you’re drawing the line.
This is largely the same kind of legal groupthink that gets us ridiculous software EULA and website TOS documents.
I agree that in most situations authors might not want to go out and compete with their existing books, but publishers do that same thing all the time, so there’s a definite double standard here. For instance, how many javascript books does Wiley publish? Publishers who insist on a strong non-compete are basically asserting “our investment and our freedoms are greater than yours (the author’s).”
Although non-competes of some kind are pretty much standard, they should be negotiable. I much prefer Tim O’Reilly’s position on this. O’Reilly doesn’t have a non-compete in their standard contract. Here’s Tim’s post on the topic:
http://www.oreillynet.com/pub/wlg/4118
Fwiw, he brings up an even worse scenario where you might have a non-compete _and_ an option (right of first refusal).