Book publishers love long contracts. I have a contract from John Wiley that runs 11 pages; one from Rodale that takes up 17 pages; another contract from Broadway Books that “only” goes 10 pages but they’re legal-sized; one from Penguin Putnam that stuffs 38 clauses into 11 pages; and others equally long.
Some of the material in a standard publishing contract is straight forward, but certain passages can cause trouble down the line – including the “Competing Works” paragraph. It may be placed in a clause of its own, or be buried in another clause. It is worth the time to hunt it down and see what it says.
Here’s how it’s phrased in a Penguin Putnam contract: “The Author agrees that during the term of this Agreement he will not, without the written permission of the Publisher, publish or authorize to be published any work substantially similar to the Work or which is reasonably likely to injure its sale or the merchandising of the other rights granted herein.” (“Work” means the book you’re writing.)
A John Wiley contract says something similar, then adds: “No author shall, without the Publisher’s prior written consent, prepare or assist in the preparation of any other work on the same subject as the Work that might, in the Publisher’s reasonable judgment be directly competitive with the Work.”
Yet another publishing contract put it this way: “The Author will furthermore not prepare, publish, assist, or permit to be published any other work using material based upon or incorporating material from the Work or on the topic of the Work that might, in the sole opinion of the Publisher, injure, interfere, or compete with the sale of the Work…”
At first glance this seems reasonable. After all, a publisher who has invested time and money in the creation, distribution and sale of your book does not want you publishing, writing, contributing to, or otherwise assisting in the writing or publication of a book that will interfere with sales of the book you did with them.
Unfortunately, there are ambiguities in the contract language. Exactly what do clauses like “substantially similar,” “reasonably likely,” “assist in the preparation of,” “same subject,” “that might” and “directly competitive” mean? What does “prepare” mean? Does it refer to you writing another entire book? Part of a book? Editing someone else’s book? Giving advice to someone for their book? Making up the Index? And what does a seemingly obvious phrase like “on the topic of the Work” mean? How about “injure” sales? I’m sure lawyers could spend years arguing over the meanings of these phrases. And just what is the “Publisher’s reasonable judgment?”
This clause is typically very broad and can prevent you from writing and/or publishing a book on a similar – or not-so-similar – topic as long as the contract for the original book is in force. And with electronic publishing and print-on-demand, a book can remain in print indefinitely (unless you place limits on the book’s life, which I’ll discuss in a later entry).
Unless you are absolutely certain you will never write, publish, contribute to, or otherwise work on or be somehow connected to another book that might, “in the Publisher’s reasonable judgment,” compete with the original book, try to make the Competing Works language very specific.
For example, if your current book discusses supplements for prostate enlargement, ask to have this spelled out in Competing Works clause and used in place of “same subject,” which could be interpreted as meaning any book on prostate health. That way, you can write other books covering different aspects of prostate health.
If your book presents a diet for diabetics, ask that this be spelled out in the clause. Instead of “same subject” or “on the topic of the Work,” ask that it say “…on the topic of a diet for diabetics.” Even better, try to get the publisher to spell out exactly which type of diet for diabetics, such as “…on the topic of a whole-foods diet for diabetics” or “on the topic of a meat-based diet for diabetics.”
Your goal is to make the Competing Works clause as clear and narrow as possible, so don’t let the publisher broaden it. This almost happened to me when I wrote a book rating the effectiveness of various alternative cures. The contract the publisher gave me said I couldn’t write a competing book on “alternative medicine,” a much broader topic than the original book. I had them change this to a book “rating alternative medicines.”
Will a publisher agree to change the verbiage? It all depends on how much they want your book. If they’re eager to publish it you have leverage, which you should use. And be sure to have an attorney go over the contract and your suggested changes to make sure you’re protected.
