Showing posts with label authors. Show all posts
Showing posts with label authors. Show all posts

Sunday, April 20, 2014

Toward a Fair Non-Compete Clause

@jamesscottbell

Recently, a friend sent me the text of a non-compete clause to have a look at. It was from the contract of a New York publishing company. My gob, as they say, was smacked. If there was a contest for the most one-sided non-compete clause ever, this would take the crown.

I say this in love. Truly. I love traditional publishing and want it to survive. But contracts that contain clauses like this one are not going to aid the old cause.

Due to confidentiality I am not at liberty to reproduce the text verbatim, but I can give you the gist:

The clause prohibits the author from publishing "material" that is "similar" to the Work. So what if your crime novel is coming out from Publisher, and you want to self-publish a mystery short story? Or sell it to Alfred Hitchcock's Mystery Magazine?

Too bad. Because a short story is "material." And a mystery usually has a crime in it, so it's "similar."

Or suppose you've had the foresight to reserve audio rights. You have a mellifluous voice, and spend twenty hours recording the audio version of your book for ACX, Amazon's platform for indie audio works.

No go, because the clause in question prohibits the author from "exploiting" any reserved rights that may "conflict" with sale of the book. And who gets to decide if there is such a conflict? Not you.

And there isn't even language in the clause suggesting the author might seek the "prior written consent" of Publisher! Message: Don't even ask, dude.

Further, how long do all these restrictions last? There is no time limit (though the overall agreement is for "life of copyright.") Which leads me to believe that the wet-behind-the-ears law grad who drafted this needs to be flogged with a hardcover copy of Calamari and Perillo on Contracts. This clause is clearly unenforceable without a time limit. Courts will not allow a company to tie up someone's economic future ad infinitum.

But the burden of challenging the clause is, of course, on the author. Or, should the author go ahead and publish a work the publisher deems to be "competing," the publisher may task some associate at their retained law firm to put down his coffee and make life difficult for the author.

Who is going to be the big dog in that fight? Let's compare the status of our respective parties:

Publisher = deep pockets.

Author = pockets with holes.

Now, before I move on, let me emphasize that the traditional publisher absolutely deserves to have a fair non-compete clause in the contract. Here's why.

The publisher takes a risk with an author, puts up capital (in the form of advance and production costs) with the hope of return. A significant part of the return is from bookstores (remember those?) Bookstores do not want to stock competing titles from the same author during the same season.

Thus, the standard non-compete was to keep John Grisham from publishing The Firm with one publisher and The Pelican Brief with another, and having them both come out at the same time. The books would "cannibalize" each other, so the saying goes. One, or more likely both, publishers would be harmed by this.

Here's another reason publishers need the clause. Suppose Publisher is coming out with your debut thriller, and pricing it as a $14.99 trade paperback, and a $9.99 ebook. But, at the same time, you bring out a self-published thriller and price it at $3.99 in digital and the same $14.99 in POD. And then you unleash your social media marketing efforts to emphasize the book that's brining you more money per unit (i.e., your self-pubbed effort).

That's not cricket. You are hurting Publisher's investment in you. That's why the non-compete clause exists.

But by now that clause should have morphed into something more equitable than the specimen I reviewed. Publishers have to realize that the times are not a-changin'––they're a-changed. Permanently. They should not play hardball with contracts as if it's still 1995.

Authors (and agents) should not accede to a "standard" non-compete clause. One like this should be a deal breaker. 

Here's an idea: negotiate! 

So what is a fair non-compete clause? Very simple: a time-limited clause that specifically defines the type of material covered. For example:

For one year from the date of publication of the Work, Author will not publish or authorize to be published, in either print or digital media, any work greater than thirty-thousand words in the thriller, mystery or crime genres.

This leaves open the publishing of short-form work which, I might add, the publisher should encourage. This is how the writer attracts more readers, many of whom will then seek out the author's trad-published books. It's a classic win-win.

In this era of suspicion, vituperation and even paranoia, here is a way for publishers and authors to actually do what is in their mutual interest.

Imagine that.
  

Monday, March 3, 2014

Author Responsibility

by Clare Langley-Hawthorne

Last weekend I went to the Society for Children's Book Writers and Illustrators (SCBWI) conference in New York City and one of the key note talks was on the issue of author responsibility. I have to admit it isn't something I've thought much about - beyond my responsibility to readers to write the very best books I can. My books don't tend to contain graphic violence or sex and I don't write with any particular agenda or controversy in mind, so it was interesting to hear what one writer thought was her responsibility as an author. 

Obviously, the issue was of particular concern to her (and to most SCBWI members, I suspect) because she wrote for children and teenagers. What I didn't expect was that she would feel so strongly about her responsibilities, beyond that of 'professional grace', to instances where readers were indirectly affected by the book she had written. One example she gave was of a family who were listening to her audio book in the car and who were so overcome by emotion by the story that they were pulled over for speeding - she felt that she, as the author, was responsible for that occurring. Now in that instance, I disagree. I think there are many indirect consequences of reading/listening to a story which are not the author's responsibly because readers have a choice as to where and when they read/listen and for their own behaviour as a result. 

Still, the concept of 'author responsibility' is an intriguing (and often fraught) concept...and I'm not even sure I'm totally clear on what that concept means to me. At the very least I think author should take responsibility for striving for excellence in their writing and that they should behave as a professional in all aspects of their career. At a minimum they should be held responsible for plagiarism and copyright infringement of other people's work. As an author I also wouldn't want to incite anyone to hatred or violence - but when I think about other authors' work I can see the concept of 'responsibility' could be a slippery slope indeed.

As a strong supporter of intellectual freedom, I certainly don't believe in author censorship but as a mother I'm also aware of the responsibilities involved when caring for young minds. I think it's important that writers (including writers of children and YA books) tackle weighty issues such as drug abuse, sexual assault, domestic violence, racial discrimination, persecution and bullying. Adults, children, and teenagers can only benefit, in my opinion, from being exposed to a variety of books dealing with a broad range of issues and perspectives (even those that make me personally uncomfortable).

Though I am often 'caretaker' when it comes to what my children read, I never feel that I have any right to advise others as to what their children should or should not be reading (ditto for adults!). So what do I feel, as a reader/mother, is an 'author's responsibility'? Do these standards differ to what I feel I'm responsible for as a writer? I'm not sure. But the talk at SCWBI certainly made me think about what I expect from both myself and other writers. 

So what do you think is your responsibility as an author? What standards to you hold yourself up to and do these standards differ when it comes to other authors?


Wednesday, March 27, 2013

Know Your Audience

Nancy J. Cohen

This past weekend, I had the privilege of speaking to the Southwest Florida Romance Writers in Estero, Florida. Up to 25 members were present when I spoke about Social Networking for Writers and passed around my eight-page handout. We could have discussed this topic for a lot longer than the allotted hour, but our time ended and I left for home.

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P1020303 (800x600)

On the drive back to the east coast, I reflected on how a speaker really has to gear her talk to the audience. Speaking to a bunch of writers is a lot different than giving a talk to a roomful of fans. Readers in general are eager to hear how you got published, where you get your ideas, what you researched for your story, and if you make a living at what you do. Don’t ask me why, but that question always arises. Would you ask a lecturer how much money he makes?

You’re expected to be witty and entertaining and to use anecdotes in your talk. I like to educate the public on the realities of the publishing business, so I’ll talk about the impact of the digital era, choices for writers today, and what readers can do to help authors in terms of customer reviews, Liking our pages, sharing our posts, etc. Lay persons find this information to be fascinating. Sure, I’ll talk about my books but mainly as an overview about my series and some of my research experiences. I don’t believe in doing readings or a book review on a specific title. There’s nothing more boring, IMHO, as an author’s droning voice as he reads from his own work. It’s more exciting to talk off the cuff about the publishing world and what fuels my stories.

In contrast, when speaking to fellow writers, I aim to teach. I want to get points across that they can take home and use in their own work. Motivational talks uplift and inspire writers to keep plowing ahead despite the setbacks that we all experience in this career. I’d rather give practical tips, how-to details, and specific instructions. Handouts accompany all of my workshops. This is not necessarily the case if I’m on a panel, however. Then it’s much harder to get across a lot of information because you’re sharing the time and stage. It’s good to come prepared with a few pointers regardless, and handouts are still appreciated, but having one hour to myself is best for in-depth instruction.

I’ve attended panels at writers conferences where the authors prattle on about their work, and attendees leave the room having been entertained but learning nothing new. I don’t care to attend those types of sessions myself. I’d rather go to a workshop where I can gain new insights or tips on a specific aspect of writing or marketing. Anybody can talk about himself. How many can teach in a meaningful, clear manner? Those who can’t teach will do very well speaking on panels at fan conventions, libraries and community groups.

Where am I going with this? If you have a speaking engagement coming up, consider your audience. If it’s a bunch of fans/readers, talk about your books, the publishing world, where you get your ideas, the writing process. If it’s a group of writers, target your material so they can take away something worthwhile.

If you’re a reader, what do you like to hear when you go to see an author? If you’re a writer, do you differentiate how you approach each audience?