Beware the Competing Works Clause in Book Publishing Contracts

Competing Works” Clause – Part IBook publishers love long contracts! 

I have one 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.

Beware the Clause with Claws

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 the competing works clause is 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.)

The 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, the Competing Works Clause 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).

Narrow the Clause!

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.

My Sad Story

Competing Works Clause in Publishing Contracts Part 2I coauthored a book on prostate health back in the 1990s, and would now like to do another. Unfortunately, the “Competing Works” clause in my contract makes that impossible. According to the clause: “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.”

My prostate book, titled The Healthy Prostate, was published in 1996. Now 15 years old, it’s out of date and no longer selling well. But it’s still in print, which means I can’t write another book on the prostate.

Why is it still in print if it’s selling so few copies? Because today, publishers can keep books in print by making an electronic version available. With the e-version, they don’t have to tie up lots of money in the printing and storing of thousands of copies of the actual book – they just allot a tiny bit of space on their computers and if a few copies are purchased via download, fine.

I called the publisher to ask if they would put the book out of print. This means the rights to the book would revert to me, the Competing Works clause would no longer be applicable, and I could write another book on the subject.

My original editor is long gone, so I spoke to the editor to whom the book had been assigned. She was surprised at my request, saying authors usually asked her to keep their poorly selling books in print longer, not take them out of print. Why did I want mine to go out of print? When I explained why, she promised to raise the issue with her boss at the editorial meeting the following Tuesday.

Good Thing I Didn’t Hold My Breath

Competing Works Clause in Publishing Contracts Part 3Tuesday came and went, so I called the editor to ask what had happened at the editorial meeting.

She informed me that her boss would not put The Healthy Prostate out of print, despite the fact that it had sold 13 copies during the past six-month period, and 4 copies in the period before that – that’s a grand total of 17 for the year. And that was actually an improvement, for it sold only 12 copies during the previous year, 15 the year before that, and 12 the year before that.

I don’t think there’s any danger of this 15-year old book landing on the bestseller list any time soon.

Why does the publisher want to keep the book in print? There are no plans to mount a new media campaign to promote the book, or to issue a revised edition – in fact, the book has been put into “Print on Demand” status, which I understand to mean they don’t even bother to print copies and send them out to bookstores. Instead, they print copies one by one as orders dribble in.

However, the fact that it remains in print means I can’t write a competing book. I’m in a bind that I suspect is becoming more common thanks to modern technology that makes print-on-demand economically feasible for publishers. It doesn’t cost them any money to keep a poorly selling book in their on-line catalog, and by printing on demand a couple of copies at a time, costs stay low enough that they can apparently make a few bucks on each book.

Unfortunately, there is no “automatic reversion for dwindled sales” clause in my contract. This would be a clause saying that the book must sell a certain minimum number of copies in any six-month period, or it will automatically be classified as out-of-print and rights to the book will revert to me.

Alas, I didn’t think of such things when I signed the contract back in 1994, before the Internet and modern print-on-demand technology made it feasible to keep a book in print forever. In fact, back in the 1990s, when one of my books had outlived its sales life, I would call the publisher and ask to have it put it out of print, and the reply would generally be “Okay.” Not anymore.

From now on, I’ll have to consider the “automatic reversion for dwindled sales” and Competing Works clauses more carefully before signing a book contract. And it would be a good idea for you to do the same.

Ouch!

There’s still more to the saga of my book The Healthy Prostate, which the publisher refuses to designate as out-of-print, despite the fact that it has been selling less than 20 copies a year for several years now. 

I received another call from the editor, who told me her boss had told her I could buy my way out of the contract.

That is, if I paid them a little over $4,000, they would put the book out-of-print. That would release me from my contractual obligation to refrain from writing a competing book, and allow me to accept writing jobs on this subject.

How did the publisher come up with the $4,000 fee? That happened to be the amount that my author account was in the red.

The publisher had given me an advance against royalties when the contract was signed many years ago. This is a common practice. Let’s say your advance is $20,000 and your royalty will be $1 a book. In a sense, they are paying you in advance for the first 20,000 copies sold. Your account with the publisher begins at negative $20,000, and every time a book is sold $1 is added to the account. When 20,000 copies are sold, your account balance will be zero, and for every book sold after that you will receive $1 in royalties.

Unfortunately my prostate book never earned back its advance, a common occurrence in publishing. Most books do not earn back their advances; most are money losers. A relatively small percentage of books are profitable, and a very few are mega-profitable.

My book needed to sell a little over 4,000 additional copies before it would earn back its advance and zero out my author account. Since there was no chance this would happen, the publisher wanted me to pay the difference.

It wasn’t personal, just bottom-line business. But this incident shows why it pays to scrutinize the Competing Works clause in your book publishing contract very carefully.

I’m Barry Fox, a New York Times #1 bestselling ghostwriter. I help executives, entrepreneurs, philanthropists and top professionals create top-notch memoirs and business books. I can also guide you through the self-publishing process. Call me at 818-917-5362.

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