Pub Rants

Pesky Warranty Clause

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STATUS: Warm snuggly because Chutney is sitting on my lap. I’m blogging from home tonight.

What’s playing on the iPod right now? AIN’T THAT A KICK IN THE HEAD? by Dean Martin

Nothing gets my blood boiling faster then when publishers embed a no-compete type clause in the warranty section of the contract. This is actually becoming standard as of late.

It’s usually one sentence that’s easy to miss unless you’re reading carefully. Especially if you just finished reading and dealing with the no-compete clause in the paragraph before the warranty section.

The sneaky line will read something like this, “”that the book will be the author’s next book length work (whether under the author’s own name or otherwise)…”

First off, I believe it’s none of the publisher’s business whether the soon-to-be contracted work is the author’s next published work or not. Authors should be able to write and publish as many books as their ability and careers can sustain.

Now publishers will argue that they are making an investment in this writer and that they are simply trying to protect that investment, blah, blah, blah, blah. Fine. That’s what the no-compete clause is for and that’s why we, as agents and editors, like to argue the terms of that clause. This is such an important issue that it’s usually brought up when negotiating the deal points so both parties are clear as to what the author is willing to commit to or not.

So, then you think it’s finished and boom, you hit the warranty clause and there’s another pesky little reference to what is really a no-compete issue.

And as an agent, you have to start the battle all over again with limiting it, massaging the phrasing, making sure it doesn’t interfere with the author’s ability to expand his or her career, etc.

But what really annoys me is that this line really has nothing to do with an author’s warranty otherwise outlined in the rest of the paragraph. So why is it there? Good question.

18 Responses

  1. Anonymous said:

    It doesn’t appear that you ever read the comments, Kristin. But, if you do, I would appreciate further clarification of what these clauses and warranties are all about. I know it’s everyday stuff to you, but it’s Greek to me. (pardon the cliche)

    Kimber An

  2. Bill Peschel said:

    If I understand right, they want the author to guarantee that the book that the want to publish is the author’s “next” book-length work.

    What do they mean by “next”. Next to what? And why is that a “no compete” clause?

  3. Irysangel said:

    Pardon the french, but that is a sorry-a$$ clause!

    It’s good to know that these sorts of things are being snuck (?) into the contracts, and what to look for.

    As always, you are incredibly helpful. Thank you!

  4. Vitra said:

    I wonder why this has become standard as of late? Could it quite possibly be something occured in the past to make this an industry standard to protect the publishing company? Has something happened in the past significantly enough that would warrant such a clause?

  5. Anonymous said:

    I’m sending my authors’ group over here to check out the post. We’ve been exclaiming about this for two days, ever since a new author saw this in her contract.
    My publisher’s old boilplate contract didn’t have a warranty contract, but now it does, so we’re all boiling mad about it.
    I’m so glad to see that you, as an agent, disagree with this clause as well. Hopefully we’ll be able to have it struck down.

  6. snarkfodder said:

    Like Kimber An, I’m also unfamiliar with those terms and what they signify. Can you elaborate a little bit? (I know, I know, it was just a little venting and now you have to explain the whole thing! Sorry. 🙂

  7. Anonymous said:

    As I undestand it, Kristin reads the comments; she just doesn’t respond directly.

    IANAL. However, I think “Next” means that once the contract is signed, the next book by that author to appear in print must be the one to which the contract refers. It’s a no-compete clause because it means the author can’t bring out a different book with another publisher until after that book has come out. Not even under a pen name.

    Given the length of time between signing and the book coming out–around a year–that could make a significant dent in someone’s career. Especially if it happened with every book.

    I could make a guess as to what a warranty clause is, and then Kiwi can come and tell me if I’m wrong :). I think it’s the clause where the author warrants that the book is all their own work and it’s not defamatory and they’ve declared any material in the book that’s copyrighted to someone else, blah blah blah. This is usually followed by an indemnity clause, which sets out the protections for the publisher if the author breaches the warranty clause.

  8. Anonymous said:

    And here is just another example of why it is so important that an author have an agent. 🙂

  9. the other rick said:

    Actually, it’s one more sad reason why the writer needs a lawyer.

    What I’d like to know is what the publisher argues back. What is the rationale for this clause?

    As suggested, the length of time from signing and publishing can be very long, and wouldn’t another book even by another publisher potentially raise the public’s awareness of the author? Even horrendous media attention hasn’t seemed to hurt people like James Frey.

    Seems to me that this clause is in direct conflict with someone’s right to make a living by writing.

    Just some idle thoughts before the first cup of coffee.

  10. Anonymous said:

    As a person who dreams of becoming a professional writer, “I would LOVE to be faced with such a clause.”

  11. Patrick McNamara said:

    There are many major writers who write many books per year under different names. This would keep those writers from signing with those publisers because it basically takes money away from the writer. A writer may need to publish more than one a year to make a living.

  12. Anonymous said:

    Thanks, Kristin! I read your blog every day. Um, this one post went entirely over my head!

    Are they saying that if they agree to, say, release the book 8 months from now, they want you to NOT have any other books released by any other publishing house in those 8 months?

    That sounds horribly unfair, if I’m understanding correctly!

  13. Anonymous said:

    If you have a really good agent (as Kristen appears to be – I have one, too), then you don’t need a lawyer. Most lawyers, unless they are specifically experienced in publishing matters, will “over-lawyer” a publishing deal. The really good agents know and understand all of these provisions, as Kristen so obviously does.

    My agent sucessfully modified these types of clauses for me.

    If you do feel the need to get a lawyer, make very certain it is one experienced in *publishing matters* – not just IP generally (intellectual property). Law is my day job, that’s my basis for these comments.

  14. Anonymous said:

    Are publishers afraid of ‘overexposure’ on the part of the writer? That if they have book A out in January and it gets a lot of attention from reviewers etc, no on would be interested in book B when in comes out in June? I can’t see any other possible benefit for the publisher.

  15. Anonymous said:

    Hey pallie Kristin, might I just add that it is so refreshin’ to know that you are into Dino. Never was, never will be anyone as cool as the King of Cool. Oh, to return to the days when Dino walked the earth.

  16. Anonymous said:

    As an author who almost signed a contract where that clause snuck in, let me warn authors: always read your contract! Even if you have an agent. (I did, and my agent missed it.) In my case, my publisher was in no way trying to screw me–I think they kind of missed it too when they updated the non-compete and the options clauses. It was no trouble to get it fixed.

    No one cares as much about your own career as you do. So read your contracts carefully. Always!

  17. Maya Reynolds said:

    My attorney was wise enough to defer to my agent when the contract arrived.

    Yes, there was such a clause in my contract, and my agent negotiated it into terms that were acceptable to all parties.

    My former career required that I routinely read contracts, and I’m not intimidated by them. However, the publishing contract–twelve legal pages filled with terms I had never encountered–did give me pause. I would never have signed one without my agent.