Monday, 27 June 2011

Writer Beware: Do NOT sign non-compete clauses

(I'm returning - briefly - from "holiday" for an important public service announcement).

Once upon a time, I worked for a shabby asshole company in London. Since it was a shabby asshole company that was killing my joy of life, I tried to leave after about 2.5 years. After my days with nose to grindstone at the little self-important hellhole, I had some experience in consumer research.

I went to a company for a job - which did something else, but was also active in retail and consumer analysis - and they offered me a better-paid job.

The moment of truth arrives, when Aleks talks to The Old Witch, AKA Head of Human Resources about having been offered a better-paid job.

There are two responses when a valued employee who's been twice promoted does that:

One is: "How much - and we'll pay that, please stay?"

The other is: "MUHAHAHA, FOOOOOLISH MORTAL! You've signed a non-compete! MUAHAHAHA!"

In other words, the asshole company decided that New Company was its competitor and even though I would have done something totally different there, the non-compete clause effectively banned me from using my skills at the new job, for two or three years (too long to just wait it out in any case).

I was fucked. Two-and-a-half years of hardcore learning down the drain.

But where there's a Taurus and enough anger, there's a way.

I declined the job offer (thankfully - the place went bust a year later!) and immediately blitzed EVERY single headhunter and job agency in London. I was barely at my desk, so busy (and pissed-off) was I, telling them about the non-compete and how I needed to apply my German and language skills in some way that had nothing to do with consumers and retail.

That is how I got into financial journalism, and from there into business editing - making a lot more in banking than I would have had I stayed at the hellhole. Much nicer workplace, too.

The only thing that worked in my favour is that I'm not a one-trick pony. While I'd learned to analyse products, I can also write and I have foreign languages. The non-compete clause forced me to think laterally - leading me to a much more fulfilling, much more pleasant and better-paid job.

For once, the non-compete really helped me.

Non-competes in writing are a totally different matter.

There's a rumour that Harlequin, the world's largest Romance publisher has added non-compete clauses to their "new" contracts.

I'm not sure whether Bob Mayer is making this shit up, but what he says is this:

"Which brings me to the non-compete clause that’s also supposed to be in new contracts. Basically once an author signs with HQ, they can’t self-publish under that name?"

If that's true, that would be utterly appalling (and not just for the very good reasons that Bob cites in his article), and grounds enough to turn down the contract. Basically, I've been told by several sources that Harlequin offers a "take it or leave it" contract. There's no negotiation with the 900-pound gorilla in the space.

What's worrying me is that it's the BACKLIST that authors actually live off. My agent made that very clear: You can think about quitting your day job when the books you wrote 5-15 years ago pay your rent, your health insurance, your pension and everything else and you have a little extra.

The front list (aka: the current release) is nice - another step up the ladder. The backlist pays the rent. Now, nobody sells more backlist than the author - a fair chunk of my backlist doesn't make a penny because I sold ALL my right, FOREVER, to a publisher who let it all fall into oblivion. Those books aren't being reprinted, they aren't issued in e-books - for all intends and purposes, they make nobody any money, not the publisher, not for me.

(Yeah, I've been real clever about contracts in my misspent youth, but that one was a "take it or leave it" contract, too.)

Now, the issue I have is that an adventurous publisher could not only keep you from self-publishing under that name (that name = your whole identity and self you've built on the internet, the only thing that helps people find you and your OTHER books). They could try to force you deeper into bondage - you might be unable to sign up with another publisher, or are forced to sell ALL your romance titles to them.

Ooops. Some publishers are already doing that (via ROFR clauses). I'll talk about THAT brand of "WHAT THE FUCK" some other day.

What is so disturbing is that, clearly, some publishers feel so threatened they are trying to shackle the author any way they can get away with.

There you are, thinking you signed a contract to get editing, a great cover and distribution - and meanwhile, you've signed the rights to YOUR OWN NAME away as WELL AS THE RIGHTS TO YOUR FUTURE BOOKS and HOW and WHERE to publish them.


Do NOT sign your books or your brand into slavery. My age, I hope I'll be writing for another 40 years. I will not - ever - sign my name away or preclude the idea that I'll self-publish or start my own publisher. The publishing space has changed beyond recognition in the last ten years - can any of us predict what's going to happen in the next forty years? Or, you know, what your kids or grandkids want to do with the brand you've so carefully built?

DO NOT sign your rights away - especially not with a publisher who won't negotiate. Walk away. No, don't walk, RUN.

Edit to add: Bob Mayer has since updated his blog post and says "there is no indication that the non-compete will be included in the contracts."

Edit to add - No. 2: Harlequin's official response.

Which is GREAT news. But even if Harlequin is not doing it - somebody out there will try it. Read contracts carefully. Ask people what shit means. Even get a lawyer. With more and more publishers being squeezed and panicking over both the movement towards indie and self-publishing, there are people trying to pull a fast one. I'm glad it's not HQ, but there's a lot of other nasty shit out there, like the ROFR clause, about which I'll be writing in a future post.


  1. I would never sign that--that's insane. Not with Random House, not with Harlequin - no-one.

    I can quite understand when you sell a business--that's where these clauses are common, that you ask the seller to agree they won't (for example) set up as a competing hairdresser at least within X miles and X years but in publishing?

    To me it is (as Meyer says) taking advantage of the fact that people are so desperate to sell their book that they'll sign anything. But how would you know on the sale of your first book that you'll never want to write anything else ever?

  2. I'm glad that the Carina contract doesn't have that shit, and I'd be out of their door so fast you could see my jet exhausts fire.

    What worries me is that every mom-and-pop shop (you know which one I'm talking about - the one with 7 years contract length and ROFR but very small sales) will emulate HQ, basically "they do it, so it makes sense."

    Fucknuts. It does NOT make sense in this day and age. It only speeds up people's sense of "WHAT THE FUCK IS GOING ON HERE?" and alienates their "raw material" (aka: authors).

    Yeah, there will always be idjits, but I'm hoping - optimist that I am - that between us, we can educate the young'uns.

  3. I'd wait and see if it's a boiler plate change--by the looks of it, it's not a new clause, they've been using it for a while, but probably only with big estabished authors.

  4. I would never sign a contract like this, but it does worry me that many unagented writers may not take the time to read through and really think what the implications are of these clauses. I always thought ROFR for future works featuring characters in a published book was dodgy, but this takes the biscuit... no, this takes the whole biscuit factory.

  5. Josephine - the rofr doesn't always refer to series or characters. Technically I have a ROFR with Running Press for LIFE for ALL my gay historicals - but as they aren't running a m/m line right now, it amounts me to whapping them an email "I have this book - want it?" and either they reply "no" or they don't reply within the guidelines and that's all. My agent says that really I should not bother, but I'd rather adhere to the contract. It does, of course, tie me to them should they wish to take up the m/m historical line again. The only way I don't owe the the ROFR is when I write a non m.m historical

  6. Wow, thank you for sharing this. I can't imagine a non-compete for my name. I have one for my work place, but only for a direct competitor that's 20 minutes down the road (which makes perfect sense).

  7. That clause would definitely stop me signing if I found it in a contract.

  8. Katisha Moreish28 June 2011 at 13:52

    Thank you for alerting us to this!

  9. I wonder. If they say I can't publish under my own name, which on my upcoming release with Carina is Barbara Longley, couldn't I publish my backlist under a slight variation of same? B.J. Longley, for instance? Where there's a will, isn't there always a way?

  10. Re-read the post - I just updated it. Apparently there is no non-compete to be added. Link here: