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Don’t Breach Your Publishing Contract by Mistake!

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Blogger: Rachel Kent

When you get a publishing contract to sign, it’s important to read it because it’s a legal, binding document between you and the publisher. Even if your agent has already read the contract and thinks it looks good, it’s not your agent agreeing to the terms; so you need to be aware of what you are signing. The other thing you should do is keep a copy of your contract(s) on hand so you can easily look at the terms to check if you have a legal right to do certain things–check with your agent if you aren’t sure, too. Here are three areas where many authors accidentally breach their contracts.

Author sales: Most contracts include a section that spells out how many free copies of the book an author is to receive. The contracts typically specify that these copies are not to be sold, but are to be used for promotional purposes only. An author should feel free to give these away to friends and family, send them out to blogger friends, etc. It’s very common for authors to take that box of books to sell at speaking events or book signings, but this is a breach of contract. Books that are going to be sold must be purchased through the publishing company with the special terms and discounts that are also spelled out in most contracts.

If you’ve accidentally done this, you can make it right by placing an order with your publishing house for the number of free books you sold and use them for promotion this time.

Return of rights vs Out of print: Another common way authors breach their contracts is through mistakenly thinking that a book going out of print means that the rights have reverted. Occasionally this is true, but the contract will specifically spell out what needs to occur before rights revert to an author. Authors sometimes receive a letter notifying them that the book has gone out of print, and they immediately self-publish the book through Amazon or a self-publishing company. This can create a huge mess for both author and agent.

Non-compete: A third, easy way for an author to accidentally breach his or her contract is to ignore a non-compete clause. Not all contracts have these, but they usually say something like “author will not publish another similar book that could interfere with the sales of this work without permission.”  They vary quite a bit, but the contract is designed to protect the marketing force that the publisher and author are putting behind the book. If the author is dividing his or her marketing time between three similar books, the sales for each book will be compromised. Not to mention that readers tend to want to buy one new book from you at a time, not three at once. Readers will choose between the three books. Authors, in general, tend to get so excited about writing opportunities that non-compete clauses are mistakenly ignored.

Please see these examples as a friendly reminder to check your contract. There’s no way for you to memorize the entire thing, so be sure to use it as a reference guide as you move forward with your soon-to-be published book(s).

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  2. Great information, Rachel. I’ be interested in learning more about non-compete clauses are framed, because I can see some pretty wide latitude. For a novelist, would that generally preclude another novel in the same genre for a specified period? And if so, how ‘close’ to her favoured genre could the novelist skate? Could a contemporary romance writer legally put out a title in romantic suspense? Or should she go Amish, just to stay on the far side of the interpretation?

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    • It’s usually all right to write in the same genre or time period, but all materials need to be unique. And if there’s ever a question an author (or agent) should check with the publisher first.

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  3. Rachel, I learned early on to carefully read a publishing contract. I’m continually amazed at how many times writers will take the author’s copies they receive and sell them. Although I haven’t heard of publishers filing suit in these situations, I imagine it could happen. Thanks for the reminder.

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  4. There is no denying the importance of reading the contract. Understanding it, however, is another matter. I suspect publishing contracts fall into that same lovely “genre” as do insurance contracts, mortgages, tax law, etc. … all of it SO easy to wrap my mind around. That said, it would be time well spent to plow through the contract, mark sections that are unclear, hop on the phone and say, “Rachel, this section is confusing me.” 😉

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  5. This information was all news to me. Thank you for sharing. I can see how easy it would be breach a contract if you don’t pay attention and keep a file on handy.

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  6. Rachel, as a “retired” person who can write full time, I can turn out two very carefully crafted novels a year. My first was last November, and my second went live this morning. I’ll have another ready to launch by November. I think that might not be unusual for someone who can write full time, like me.
    *I first learned about the non-compete clause here, and I can see where that could ham-string a prolific writer. How difficult is it to limit its impact on someone who has the time to dedicate to writing and can get quality manuscripts ready fast?

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    • Carol, it seems to me that you enter into the contract negotiation with this very scenario in mind. It just has to be part of that haggling and negotiating process. I’d think you would negotiate the non-compete language the same way you would negotiate the advance. But then I am a neophyte, and really don’t know what I’m talking about.

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      • It’s very much to the publisher’s benefit to dig in their heels on this one since removing or relaxing it could help the author but might hurt the publisher. I’d expect more flexibility on advances than on non-compete, Damon.

    • Damon is right, it is important to have in mind what you would like to write in the future when the contract is negotiated. That way you can make sure the clause doesn’t limit you too much. Sometimes a publisher will take it out entirely, but not every publisher is willing to do so.

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  10. Books & Such has some of the most practical author advice of any blog I’ve found! Thanks, Rachel. I’ll be keeping these points in mind for father down the author road.

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