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The Authors Guild: Say No to Non-Competes

3335503224_bf73300161_bThe Authors Guild continued its two-month old fair contracts initiative this week with a new post on non-compete clauses.

Past TAG topics have included boilerplate contracts, termination clauses, and publishers trying to grab an author’s copyright, and now TAG would like to have a word on the varied ways that publishers block authors from writing similar works:

Authors must be free to publish the works they want to write. But publishers often insist on terms that can make that impossible. In attempting to restrict authors from competing against their own works, publishers craft broad, harsh non-compete clauses that can unfairly impede authors from making a living. These clauses have to go.

Don’t get us wrong: We get the basic concept. An author shouldn’t be able to take a book under contract with Publisher X, rework it a little, walk it across the street, and sell essentially the same book to Publisher Y. That’s what non-compete clauses were designed to prevent, and when that’s all they actually do, we’re fine with them—although other provisions in publishing agreements accomplish the same thing.

Isn’t it a shame that The Authors Guild should have to address this in 2015?

In an age where authors can pass on a contract and make a decent income as an indie, publishers are still trying to entrap the unwary into handing over control of their future work.

Whenever I read of an author declining a contract, the non-compete clause is often cited, with the corollary that it would cost the author money by preventing the author from selling other works to other publishers or in competing.

I’m wholly opposed to a non-compete clause, but TAG tries to strike the balance in their suggested alternative to the standard clause:

Author agrees that during this first year of this Agreement, Author will not, without the written permission of the Publisher, publish or authorize to be published any full-length work specifically intended to supplant the Work in the marketplace, and which would clearly and directly harm the sale of the Work.

That still gives too much power to the publisher; a sufficiently competent lawyer would argue that the author’s other books in the same genre met the definition.

Better to do away with the clause entirely.

image  by seeveeaar

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Bridget McKenna August 29, 2015 um 2:48 pm

My guess is publishers are never going to do away with non-compete clauses; it’s a way of protecting an asset. But I do think the AG’s proposed time-limited clause could be more specific. It’s the increasing broadness and generality of the existing clauses that make them so damaging to authors. As long as writers are going to sign trad-pub contracts, at least getting a specifically-limited non-compete would limit a lot of the damage a publisher can do to that writer’s future career.

Terry Simmons August 29, 2015 um 10:31 pm

Very interesting.

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