Thursday, 2 April 2015

Thoughts on Non-Competition Clauses

I was speaking with a fellow writing friend last week, one who has been quite successful in her career.  Without going into identifying details, she is a hybrid author, which means she writes books for a traditional publisher and also self-publishes some works.  She began as a traditionally published author and then branched out recently into self-publishing.  I was curious how her publisher felt about her self-publishing ventures as I've heard many horror stories about publishers blocking or suing their authors who try to self-publish, invoking the non-competition clause in their contracts.

She explained that her editor was quite supportive and had no problem with her publishing other stories, as long as they did not come into direct competition with the kind of stories which she wrote for them.  I was quite impressed and thought perhaps I had misjudged the situation.  (I'd been given advice early on to self-publish first and then seek traditional publishing options, so that my publisher could not insert a non-competition clause which would prevent me from ever self-publishing.)

I asked her if she had an official NCC in her contract and she told me that she did and that the wording of it was that she would not write anything except for her traditionally published author.  The only exceptions were projects she already had underway, which she was required to list out at the time of contract.

I had to step back.  This wasn't just "I won't publish anything which competes with you" but a "I won't write anything which could maybe one day compete with you" clause.

She told me that her editor was perfectly fine with her pursuing other projects and that they'd come up with a massive list of everything she thought she ever might like to write so that it would be covered under the pre-existing project exception.  And when something came up which was outside of the list, she simply spoke to her editor and got permission to proceed.

Obviously it is working for her.  She's successful and doing what she wants.

Maybe I'm more paranoid and suspicious but I would have a hard time signing a contract promising that I wouldn't write except for my publisher, no matter how much they reassured me that it wasn't going to be an issue.  Maybe this editor would be on board, but what if he/she got replaced?  Would the next one be as understanding?

It's too much power on one side of the equation.  I get that things tend to be stacked on the side of the publisher.  They have the money and the connections and they are taking a risk on the author, particularly when the author is new.  That's just how the business works.  But it would make me very uncomfortable, conjuring up mental images of expensive and drawn out court proceedings fighting for the rights to my own imagination.

Your Honour, will the defendant please refrain from cluttering the proceedings
with unicorns and dragons and other irrelevant fantasies?  The Hugh Jackman ones can stay.

I'm not anti-traditional publishing.  I think that when it works, it works beautifully.  And it's worth pursuing.  But there does seem to be a lot of concern about locking an author into a particular brand and making sure that what an author writes is going to be profitable.

Another author I follow recently jumped onto the self-publishing bandwagon after her publisher refused to let her write romantic-suspense.  They wanted her to concentrate on contemporary small-town romance, which is very popular and makes a lot of money but isn't what she wanted to write.  She gave it a try but her heart wasn't in it.  She's now self-publishing romantic-suspense and her fans are thrilled.

I have no idea where my career is going to take me.  I'd like to have my books in bookstores and readily available everywhere, which is something traditional publishers can offer.  But I'd also like to have the power to explore whatever universes call to me, without having to beg permission.

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