Q. Is there anything I have to be particularly careful about in the “competitive books” clause?
A. Yes. Lots.
The most important is to make sure that the prohibition on competitive works applies only to competitive books. Otherwise, your publisher might be able to prohibit you from publishing certain magazine articles and very likely could prohibit you from licensing an “app” on the same subject to app publishers.
But the following points are important too.
1. Narrow the section’s scope as much as possible by carefully defining what kind of book would be competitive, e.g., “a book on the same subject directed to the same audience and treated in the same manner and depth.”
2. If the book is fiction, try to get the clause deleted altogether. Many publishers will insist on it only for nonfiction books.
3. Add a sentence saying that books featuring the same character (in the case of fiction) and sequels are not competitive.
4. Add a sentence saying that the prohibition will not apply to books offered to the publisher under the contract’s option clause and declined by the publisher.
5. Try to have the section apply only for a limited number of years, e.g. three or four. This is often a way to bridge disagreements between you and the publisher about other aspects of the clause, and more publishers will agree to this limitation than one would expect.
6. Especially if you are unable to limit the time period during which the section applies, provide that it applies only when a specified number of books have been sold within the most recent two six-month royalty reporting periods. Or only when the amount of money you received in royalties during those periods exceeds a specified amount. These numbers, whether of books sold or royalties received, should be significantly higher than those used for out-of-print determinations. There is no good reason for a publisher to insist that the low numbers in a typical contract’s out-of-print clause should prevent you from publishing another book on the same subject that could reach new readers and earn you significantly more money than you’re getting under the existing contract.
The same point — setting more stringent sales criteria — should also apply to your right to license an app on the same subject as the book if the publisher refuses to limit the section’s scope to books.
7. If you publish under more than one name, specify that only books published under the name on the book under contract are covered by the section.
8. Provide that if the right to publish print-on-paper books reverts to you while the publisher retains e-book rights (or vice-versa), then copies published in the reverted medium will not be considered competitive under the non-compete section. This situation could occur if your contract has (as it should) separate out-of-print provisions for your e-book and print-on-paper editions.
One way to phrase this point contractually might be to say “This Section [insert section number] does not apply to the exercise of any rights granted in this Agreement which revert to the Author in accordance with the provisions of this Agreement.”
(Originally published in the Fall 2011/Winter 2012 issue of the Authors Guild Bulletin. © Mark L. Levine)
Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.