Pub Rants

STATUS: On Friday it was colder in Denver than most cities in Alaska. Today it’s 60 degrees and gorgeous. But never fear, it’s supposed to snow again on Friday—therefore not breaking our snow streak.

What’s playing on the iPod right now? IT’S MY LIFE by Talk Talk

All publishing contracts have a clause that basically asks the author if the work is original and whether the author has the right to enter in this agreement.

That’s reasonable.

The clause will read something like this:

“The Author warrants, represents and covenants: that the Author owns all rights and licenses herein conveyed and has the full and sole right and authority to convey all such rights and perform its obligations hereunder; that the work is original with the Author in all respects, except for any portion which has been previously published and is identified as such; that, with respect to works of nonfiction, all statements contained in the Work as published are true or based on reasonable research for accuracy: that the Work is not in the public domain and is or may be validly copyrighted or registered for copyright in the United States and…”

And the clause will go on to make sure the Author hasn’t defamed anyone or invaded privacy. That there is no litigation pending or a claim outstanding. That the work won’t cause harm etc.

You can see where Mr. Frey ran into some difficulties with lines 5 and 6. Ahem.

To me, these are all valid considerations and the Publisher has the right to ask an author to attest to the above and sign his or her name to it in agreement.

What I don’t like, as you well know, is when the Publishers sneaks a little phrase in that reads something like this, “that the Work will be the Author’s next book-length work (whether under the Author’s own name or otherwise)”

This usually comes in line 3 after “rights and perform its obligations hereunder.”

Basically the Publisher is asking that the author warrant that this Work will be his or her next published work.

You know my take. That’s none of the Publisher’s business. The real issue is that the Publisher doesn’t want the work they’re buying to have to compete with a myriad of other titles by this author upon publication.

That’s not a true warranty. That’s a no-compete clause and it irks me to have this little sentence buried in with all the other elements of the Warranty clause that are actually relevant and justifiable by the Publisher.

Not to mention, embedding this phrasing is a recent occurrence (at least for the contracts I’ve been seeing).

So my advice is, if you are going it alone, to read carefully. There are some changes we as agents ask for when negotiating and dealing with the warranty and indemnity clauses but as you can guess, these are the two clauses that publishers show most reluctance to negotiate since the point of them is to protect the publisher. Yet, if you don’t deal with this pesky little sentence, you may find your career a little constrained.

STATUS: It’s colder in Denver today than in most of the cities in Alaska. That’s just wrong.

What’s playing on the iPod right now? SWEET LOVE by Anita Baker

Get out your notebooks. I was a little too cryptic earlier this week. So let’s talk about the no-compete clause and the Author’s Warranties in publishing contracts.

A little background. Publishers like to include a little clause that is usually called something like “Conflicting Publication” or “Competitive Works” in their book contracts.

To sum up, this clause will usually say something like this:

“During the term of this Agreement, the Author shall not, without written permission of the Publisher, publish or permit to be published any material based upon or incorporating material from the Work or which would compete with its sale or impair the rights granted hereunder.”

Fair enough.

But then the publisher likes to continue. The real crux of this clause is in the next section that will state something along these lines:

“Subject to the terms above, the Author agrees that in no event will the Author publish or authorize publication of any other book-length work of which the Author is credited under his/her own name as an author, contributor or collaborator until six months after the publication of the book under this agreement.”

Therein lies the problem if the author wants to have a prolific career. This clause would severely limit the variety of books the author could publish at any given time (if they have to wait 6 months after the publication of the book in this agreement or their other agreements). Just imagining the scheduling conflict alone is enough to give me a headache and if the author writes nonfiction as well as fiction or young adult as well as adult novels… you can see why this clause would inhibit a writer’s career.

So, agents limit the clause. “Any other book-length work” is too open-ended. We dig in and start defining that book-length work. Now how we define this can vary depending on what the author writes, what they have going at the time, and what they plan to write in the future. If the author already writes in let’s say an adult genre but now we are doing a contract for YA books, we force the publisher to acknowledge their upcoming adult books in this clause as well so it’s clear that even though those books are out on the shelves at the same time, they aren’t “in competition” with the book in this contract.

Why do publishers bother? They want to protect their investment and not have a diluted market when releasing their book. That’s the argument I’ve heard anyway.

Of course what’s not taken into consideration is the synergy and buzz that can be created when an author has multi-books out on the shelves at the same time.

You can probably also see that the bigger the author is (i.e. Nora Roberts or Dan Brown) the less of an issue multi-books become because there is room for all with his or her avid fan base. The no-compete clause becomes a moot point of the publisher wants that author on the house list.

We’ll tackle warranties on Monday. This is a too brain-taxing way to end a Friday. Happy weekend folks.