# Harper Voyager / HarperCollins Taking Unagented Manuscripts



## Steerpike (Sep 12, 2012)

They're taking them over a two week period, so if your novel can be completed before the window closes October 14, 2012, it might be a good opportunity:

Harper Voyager to Accept Unagented Manuscripts for Two Weeks - GalleyCat


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## Myshkin (Sep 12, 2012)

Thanks.  This a useful post.  It seems rare these days to find a publishing house accepting unagented works.


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## The Din (Sep 23, 2012)

Anyone planning on submitting?

Seems fortuitous that I happen to be finishing the final spit and polish as the 'window of opportunity' approaches. Coincidence or fate, I might just have to try my luck alongside the million others.

Downsides I foresee.
-Mainly ebooks, though they hint at a possibility to move over into print.
-From what I understand, royalties seem to be 50/50 (though harper don't specify), so you cut your potential profit in half. (Which the added sales should rectify). 
-Possibility of not getting a rejection letter... Which means you can't send away to another publisher until the three month deadline is up regardless.


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## Kevin O. McLaughlin (Sep 23, 2012)

I would avoid this offer like the plague, to be honest. My understanding of this "deal" is that basically:

- They are not offering advances.
- They are acquiring both ebook AND print fits, although they plan to only execute on the ebook rights unless the book somehow happens to hit big. So most likely, you're losing print distribution, and gaining zero distribution over what any indie can acquire.
- You're getting, at best, 25% of net, on those ebook sales.
- Harper has a rep for having some of the nastiest, most career-ending non-compete clauses in the business. (Have not personally verified that, so it's second hand information.)

Basically, this "deal" is going to get you free editing and cover on an ebook, in exchange for losing 3/4 of the income on the book forever and likely giving Harper a say on everything else you write in that genre for the duration of the contract (quite possibly the rest of your life).

It's all the worst aspects of indie publishing (no print distribution, no advance, having to do all your own marketing) combined with all the worst aspects of traditional publishing (losing 3/4 of the profits on sales, brutal non-compete clauses in contracts). I can't recommend this "deal" at all.


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## Steerpike (Sep 23, 2012)

It says in the guidelines they will do marketing, so the idea that you are stuck with your own marketing appears on the surface to be false. Do you have a source for the other points you raise?  Or are you basing it on personal experience with these guys?  Everyone should read their contract before signing of course. The kind of non compete clauses you are talking about in their most egregious forms are not enforceable in most places. The idea they could control your writing for life seems alarmist and implausible.


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## The Din (Sep 23, 2012)

Kevin, thanks for the warnings. It's all stuff I considered (except the 'controlling your writing for life' bit, that does seem a little alarmist) though none of it's a deal breaker in my opinion. 

-Don't want an advance. I'd rather make money (or not) on sales and hopefully get a better percentage of royalties for it. 
-I plan on 'hitting big' (doesn't every would-be author), so having a chance to shift into print depending on ebook sales hits my over-inflated ego just right.
-I'd expect the increased sales of going with a big publisher to negate their percentage. (Is that 25% based on anything? I;d read somewhere that digital publishing was closer to 50%.) Anyway, who really expects to make millions off their first book?
-If they actually offered a contract, I'd be sure to have a lawyer/agent take a squiz before signing anything.  

Finally, submitting doesn't automatically sign you up to some unbreakable contract. I plan on using this opportunity to test the waters and try and reach some of the big editors that normally would be out of the reach of the un-agented. It's only a 'deal' if you make your mark.


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## Benjamin Clayborne (Sep 23, 2012)

Steerpike said:


> It says in the guidelines they will do marketing, so the idea that you are stuck with your own marketing appears on the surface to be false.



It says things like "Yes. We will support our digital Harper Voyager titles with comprehensive publicity/marketing campaigns, marketing each title, using the digital landscape to strongly support this fantastic line of digital-first publications." But that's so vague as to be useless. I've definitely heard many other tales of big-name publishers providing only token, letter-of-the-law marketing support for their authors, so I'd be inclined to believe Kevin.

I don't plan on submitting for the same reason I self-published: I have no interest in being beholden or under contract to anyone else, so whether or not it would be a good deal, I'm just not interested.


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## Kevin O. McLaughlin (Sep 23, 2012)

Steerpike said:


> It says in the guidelines they will do marketing, so the idea that you are stuck with your own marketing appears on the surface to be false. Do you have a source for the other points you raise?  Or are you basing it on personal experience with these guys?  Everyone should read their contract before signing of course. The kind of non compete clauses you are talking about in their most egregious forms are not enforceable in most places. The idea they could control your writing for life seems alarmist and implausible.



Marketing dollars spent on most trad pub books correlate pretty well with dollars spent on the book. So with no print run costs, no co-op fees, no shipping, no advance, a significant percentage of the expenses involved in producing a book are gone. Add that to the double speak they use when talking about marketing in this offer, and i wouldn't expect much in the way of marketing help.

The sort of non-compete clauses I am talking about are enforceable in New York, and your Harper contract will almost certainly dictate that any arbitration or legal action take place in a jurisdiction where they are enforceable. You know, that clause where you agree that any legal action will take place in a certain state? It's there for a reason.

I haven't actually heard of a case where someone has been blocked from posting say, a blog post, by a publishing contract. Even though I have seen contracts which would effectively force the writer to ask permission before publishing a blog post. I have seen cases where even years after a book was published, an author was sued for breach of non-compete for writing another book on a similar topic. These clauses are being added, in no small part, to lock writers in to a specific publisher. They prevent indie publishing. They prevent writers from looking around at other publishers. And if you sign the contract, you've agreed to those terms.

At the very least, if you're going to try this thing and they offer you a contract, DO hire a good lawyer to vet the contract before signing. Don't assume you can spot the nastier clauses by yourself.


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## Steerpike (Sep 23, 2012)

Non compete clauses unlimited in time and geographic scope (i.e. they can control everything you write for the rest of your life) are not enforceable in New York or any other U.S. jurisdiction I know of.


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## Kevin O. McLaughlin (Sep 23, 2012)

But they generally are limited in scope and duration.

Duration is duration of contract, which remains in effect for as long as the work is available through major retail channels. I.e., effectively forever, for ebooks. The fact that the nature of the business will extend contract duration to "forever" may or may not be relevant when the case comes to court. (Edited to add: and it's not forever even then, as copyright expires at author's death plus seventy years. So effectively, the longest any publishing contract lasts is duration of copyright.)

Scope is often limited by words like "competing works" or "works which compete with the Work". Clauses written like that mean your blog posts are ok, but defining what work "competes with" another work is difficult.

And the bottom line is, even if the clause is unenforceable (the lawyer writing the Passive Voice blog believes many are not, if they were tested in court), you still need to hire a lawyer and burn a lot of hours dealing with a major court battle to prove that.

Personally, I don't want to sign a contract with clauses that I *hope* are unenforceable. Y'know what I mean?


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## MichaelSullivan (Sep 23, 2012)

The Din said:


> -From what I understand, royalties seem to be 50/50 (though harper don't specify), so you cut your potential profit in half. (Which the added sales should rectify).



I highly doubt that.  I'm sure it will be industry standard which is 25% of net (17.5% of list price).  If they offered 50% of net (35% of list) the "standard" Harper Voyager authors would revolt.


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## MichaelSullivan (Sep 23, 2012)

Kevin O. McLaughlin said:


> I would avoid this offer like the plague, to be honest. My understanding of this "deal" is that basically:
> 
> - They are not offering advances.
> - They are acquiring both ebook AND print fits, although they plan to only execute on the ebook rights unless the book somehow happens to hit big. So most likely, you're losing print distribution, and gaining zero distribution over what any indie can acquire.
> ...



I agree that this should be avoided but I don't agree with everything you said.

- On advances - I've seen nothing that says whether they will or won't.  I suspect they won't (or it will be low) but I don't think we can say definitively at this time.

- I can't imagine they will acquire the print since they've said all along this is an ebook only offer. I think they may come back later and ask for paper - but to tie up both and exercise only one??  Well that would be crazy beyond belief. Of course until we see the contracts hard to say - I've seen bigger bonehead moves.  But you are right if they took both rights but only did ebook that would be VERY bad.

- All the non-competes are pretty horrific - but yes certainly something that you must look at VERY carefully. I was "oh so close" to walking from a six-figure contract based on the non-compete, my agent didn't think we could get them to budget. They finally blinked at the 11th hour.


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## MichaelSullivan (Sep 24, 2012)

Steerpike said:


> It says in the guidelines they will do marketing, so the idea that you are stuck with your own marketing appears on the surface to be false. Do you have a source for the other points you raise?  Or are you basing it on personal experience with these guys?  Everyone should read their contract before signing of course.


As to marketing...They most debut authors with an advance of $5,000 - $10,000 get no marketing dollars.  If you get a $100,000 advance you get some $'s but this is mostly around co-op dollars which have no bearing on ebooks (it's only for brick and mortar stores) and I doubt they are going to do a six-figure for these contracts.  They are looking for a cheap way to publish some titles so if there are any advances they will be small.



Steerpike said:


> The kind of non compete clauses you are talking about in their most egregious forms are not enforceable in most places. The idea they could control your writing for life seems alarmist and implausible.



Not the least bit alarmist...I've worked with an IP attorney who has negotiated 700+ contracts and he pulled for me non-competes from all the major contracts and they were all similarly horrific.  My agent said, "They don't _usually _enforce them and as for enforceable - well you signed it so it's going to be hard to challenge.  But do you want to bet your entire career of "usually don't and "shouldn't be enforceable" I didn't.

And yes the way they are written it could be career ending. A typical clause....



> 16.	CONFLICTING PUBLICATION:	(a)	During the term of this Agreement, the Author shall not, without written permission of the Publisher, publish or permit to be published any material based upon or incorporating material from the Work or which would compete with its sale or impair the rights granted hereunder.



Since ebooks keep the rights with the publishers for 70 years after your death.  This would mean for instance that you could not do a prequel, sequel, or other "fantasy" book since the first two would be "based upon" and the last one would "compete with."


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## MichaelSullivan (Sep 24, 2012)

I responded to the other posts...now let me give my take on this...which is very similar to Kevin's btw.

Keep in mind that what they are offering here is digital only, and I would ask you to think carefully about the digital marketplace. *Distribution in brick and mortar stores is where publishers excel. It is nearly impossible for a small-press or self-published author to get shelf space so one of the reasons for going with a "big publisher" is for the infrastructure that they have in place to get you into these venues. *In this business traditional publishers can use their deep pockets (through co-op dollars) to get premium placement for certain titles.

For digital books it is actually a pretty level playing field. The exposure that a traditionally published book is the exact same as a self-published one. Amazon has sent out emails on my behalf (when I was self-published) and I never sent them a dime. *Amazon's model is based on performance and a good selling book gets the same exposure (through "also bought", "recommendations", "search algorithm" and "bestseller status) regardless of who posted the book.

Signing a "digital only" with a big six means you get 17.5% of list rather than 70% of list and books priced at $6.99 - $9.99 will sell fewer copies than those priced at $2.99 - $4.99. *In a "full publishing deal" you also get print sales and that helps to offset the difference income but Haper is offering only digital. *So what do you get for the difference in money:



 Cover design: which can be purchased for $150 - $350
 Editing: which can be sub-contracted to a freelancer for $350 - $1,000
 Their name on the title - yes this is worth something.
 Loss of control over key factors like pricing and categorization

Most full-blown (print, ebook, audio) debut fantasy contracts are $5,000 - $10,000 and only 20% earn out their advance. *My guess is the advance will be even lower because they are only taking one right (the most profitable right). *If we consider 7,500 copies (which is a good solid single in the debut author space) let's look at the income to the author:


 $6.99 priced traditional = $9,174 to author
 $9.99 priced traditional = $13,112 to author
 $2.99 priced self-published = $15,698 to author
 $4.99 priced self-published = $26,198 to author

Even after subtracting the production costs the self-published author is making significant more than going through the traditional route and considering that 50% of the Amazon Epic Fantasy Best seller list is self-published titles and 50% is traditional, it shows that self-published authors are selling at (or above due to lower list price) copies.

I'm not saying people shouldn't submit to this. *But if you are selected...take a minute to consider that you have a "stamp of approval' indicating that a major publisher finds value in your work...and you should realize that they are not the only option. *Try to balance the "excitement" of someone providing validation for years of work with the "business sense" to make sure you are maximizing your income. *You are about to cross a threshold to earning from your writing - and as such you need to be aware of the various alternatives.


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## Steerpike (Sep 24, 2012)

MichaelSullivan said:


> Since ebooks keep the rights with the publishers for 70 years after your death.  This would mean for instance that you could not do a prequel, sequel, or other "fantasy" book since the first two would be "based upon" and the last one would "compete with."



There is no way a publisher will be able to enforce, in court, an agreement that says you can never write another novel in the genre without going through them and getting their permission. As Kevin noted, it is going to take money to fight it in many places (probably not much in California), and you don't want to sign an agreement you can't live with on its face, but I don't know any jurisdiction that would enforce something that broad or for that scope of time. I write non-compete agreements and it is hard enough to find a jurisdiction that will go more than three or fives years beyond a relationship, and even then only if the scope if reasonable. Beyond that, courts even ignore choice of law provisions on these sorts of things, so that if I have a contract with a non-compete that says we're using New York law and I'm trying to enforce it in California, the chances are nil that the court will enforce it even if it is reasonable in terms of scope and duration, because they're void in California as against public policy. 

Note that the paragraph you quote limits that provision to the "Term" of the Agreement, which is probably defined elsewhere, and the Term and the copyright length are not necessarily one and the same (and some provisions can survive termination). Keeping you from competing during the Term is not a traditional non-compete - while you are party to an active agreement you can be bound, but that non-compete isn't going to survive termination. The key is to read the contract - the whole contract. If there is an onerous non-compete, I wouldn't agree to it either, but I don't want to scare people into thinking that if they sign with a publisher they'll never be able to publish fantasy again, ever, without that publisher signing off on it. That's not a plausible scenario in my view.

The fact that you signed it is always an argument for the other side, but taking California as an example again, I can sign non-compete agreements all day long and they're simply not likely to be enforceable in court. They are void as a matter of law, and California won't employ out of state law to enforce them even if the agreement calls for it. The primary value of them here is that the other guy signing it doesn't know it can't be enforced. There are very limited exceptions having to do when you are dissolving or selling a business and the associated goodwill.

It's a little harder to get out of them in New York, assuming they are reasonable in terms of scope and duration, because New York will give effect to reasonable ones. But even there they'll throw them out if the court considers them unreasonable.


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## Kevin O. McLaughlin (Sep 24, 2012)

Steerpike, if you look at the precise wording above, it doesn't actually say "duration of copyright". It says during the term of this agreement. Which happens to extend for as long as the publisher keeps the ebook in major retail channels, in most contracts. I agree that I've heard some lawyers speculate that would not be a legal duration for duration of a non-compete. Likewise, it doesn't say it covers all novels in that genre. It says it covers material based on, incorporating work from, or which would "compete with" or "impair sales of" the Work being contracted for. That's a vague and fairly broad set of terms, leaving an awful lot of room for lawsuits. Will the court decide in favor of the author in many possible scenarios? Maybe.

But if you write the first two books of a trilogy and the publisher drops the series, the above clause would very likely prevent you from publishing the third book anywhere else.

If you wrote a book and sold rights with Michael's clause in the contract, then wrote another book and indie published it a year after signing the contract, you'd almost certainly be in violation of the contract.

If you wrote another book and sold it to another publisher two years after signing this contract, you'd almost certainly still be in violation of the contract.

At what point would the Courts decide in favor of the writer, that the contract clause was too onerous or had gone on long enough? I don't know. I don't want to have to find out the hard way, either. Do you?


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## MichaelSullivan (Sep 24, 2012)

Steerpike said:


> There is no way a publisher will be able to enforce, in court, an agreement that says you can never write another novel in the genre without going through them and getting their permission. As Kevin noted, it is going to take money to fight it in many places (probably not much in California), and you don't want to sign an agreement you can't live with on its face, but I don't know any jurisdiction that would enforce something that broad or for that scope of time. I write non-compete agreements and it is hard enough to find a jurisdiction that will go more than three or fives years beyond a relationship, and even then only if the scope if reasonable. Beyond that, courts even ignore choice of law provisions on these sorts of things, so that if I have a contract with a non-compete that says we're using New York law and I'm trying to enforce it in California, the chances are nil that the court will enforce it even if it is reasonable in terms of scope and duration, because they're void in California as against public policy.



If this clause is so clearly "unenforceable why does it exist in thousands of contracts?  It (or something very similar) is in all contracts from the big six. When I objected to this clause my IP attorney pulled contracts from every publisher that was essentially the same.  Can I risk a career, and pay thousands to fight in court based on your say so?  



Steerpike said:


> Note that the paragraph you quote limits that provision to the "Term" of the Agreement, which is probably defined elsewhere, and the Term and the copyright length are not necessarily one and the same (and some provisions can survive termination). Keeping you from competing during the Term is not a traditional non-compete - while you are party to an active agreement you can be bound, but that non-compete isn't going to survive termination. The key is to read the contract - the whole contract. If there is an onerous non-compete, I wouldn't agree to it either, but I don't want to scare people into thinking that if they sign with a publisher they'll never be able to publish fantasy again, ever, without that publisher signing off on it. That's not a plausible scenario in my view.



Here is the "Term" language:



> 1.	GRANT OF RIGHTS:		(a)	The Author hereby grants and assigns to the Publisher exclusive print, audio and electronic rights in the Work (and any revisions thereof), in whole or in part, for the full term of copyright (including any renewals and extensions), in the English language, including the right to reproduce, publish, distribute, transmit, deliver, transfer, market and/or sell the Work, by any means including, but not limited to, fixed-copy, digital delivery, download, streamed formats, shared file distribution and wireless methods, in any media now known or hereafter devised, throughout the world (the “Territory”).



You say that's "not plausible" but that is an opinion...it seems pretty straight forward what signing a contract such as this is committing me to.  Publishers have spent millions of dollars drafting these contracts if they were unenforceable why do they all have it? 



Steerpike said:


> The fact that you signed it is always an argument for the other side, but taking California as an example again, I can sign non-compete agreements all day long and they're simply not likely to be enforceable in court. They are void as a matter of law, and California won't employ out of state law to enforce them even if the agreement calls for it. The primary value of them here is that the other guy signing it doesn't know it can't be enforced. There are very limited exceptions having to do when you are dissolving or selling a business and the associated goodwill.



Well this will be enforced based on the laws of New York 



> 27.	CONSTRUCTION; JURISDICTION:		This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements executed and fully performed therein.  It is agreed that New York courts (state and federal) only, will have jurisdiction over any controversies regarding this Agreement; any action or proceeding which involves such a controversy will be brought only in those courts, in New York County.





Steerpike said:


> It's a little harder to get out of them in New York, assuming they are reasonable in terms of scope and duration, because New York will give effect to reasonable ones. But even there they'll throw them out if the court considers them unreasonable.



I would love a New York lawyer to take a pro bono case to prove these clauses unenforceable and have them removed from publishing contracts, but since no one has...I think there is a pretty good case that they will hold up in a court of law otherwise they wouldn't be so prevalent.


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## MichaelSullivan (Sep 24, 2012)

Kevin O. McLaughlin said:


> At what point would the Courts decide in favor of the writer, that the contract clause was too onerous or had gone on long enough? I don't know. I don't want to have to find out the hard way, either. Do you?



Precisely...it is too big a dagger to hang over the author's head - the repercussions are too grave...the risk too great.  I wouldn't sign a contract with such language and it was VERY hard to get it revised (so much so...why did they fight to keep it in so badly if they knew it was unenforceable?)  I was lucky...I was in a position where I could walk...because I was making six-figures without the contract.  But what about the new author with no leverage?  They sign these contracts all the time because they are starry-eyed. Maybe they'll be "okay" but what if they are not?  It could mean that they are forever tied to a single publisher because any attempt to go around them could bring down the non-compete hammer.


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## Kevin O. McLaughlin (Sep 24, 2012)

The California exception IS an exception, too... Do any other states routinely invalidate non-compete clauses in the manner that CA does? (I have read about CA's little quirk in this regard, but have not heard of any other state which bans them.)

I don't really WANT to have to move to California just to continue my writing career. Again, it seems to me to be a bad idea to sign a contract with clauses in it I find unacceptable, in the hopes that maybe the publisher won't sue me over them.


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## Steerpike (Sep 24, 2012)

Michael...that agreement says it will be governed by the laws of New York,  but again using California as an example,  this State will flat out ignore that provision as well insofar as it relates to a noncompete provision. As I said above,  noncompete language is still used in contracts here on a routine basis, despite being void as a matter of law, precisely because employers hope people will take your view and say "if so many contracts have them they must be enforceable." So, here, at least, there is no question as to a noncompete clause being enforceable. They simply aren't, and the people who use them in employment contracts know it.  Even if the contract calls for the law of another state.


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## Steerpike (Sep 24, 2012)

Also,  the grant of rights is not the Term of the agreement necessarily. The grant can extend beyond the Term. I don't see any court in the US upholding non compete language over the duration of copyright,  which would be life plus. I could be wrong I suppose but if anyone here can find a single case that represents the law where a court ruled that an author could never again write fiction or even fiction in a given genre except through that one publisher, I'd like to see a cite to it.


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## Steerpike (Sep 24, 2012)

Kevin I think I might actually enjoy finding out the hard way,  if for no other reason than to get the precedent out there. I doubt a publisher would ever go to the wall on something like this,  though,  because if they tried to do what you suggest they would lose. Maybe they see value in people thinking it could happen.  I don't know.


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## Devor (Sep 24, 2012)

Steerpike said:


> Also,  the grant of rights is not the Term of the agreement necessarily. The grant can extend beyond the Term.



I've got to agree with Steerpike here, based on my Business Law class at NYU.  It's my understanding that contracts routinely include language that is unenforceable and that non-competes which extend beyond a certain length of time fall under this category.  There's no way - not in NY or elsewhere in the US - that a non-compete is going to stop you from being published for more than a few years.  Whether a few years is "career-killing" is up for interpretation.

The third installment in a series is another matter because there would be copyright issues involved.


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## Steerpike (Sep 24, 2012)

So I looked up some provisions in a few States just to get a snapshot. 



> California Labor Code Section 2855:
> 
> "(a) Except as otherwise provided in subdivision (b), a
> contract to render personal service, other than a contract of
> ...



(note: the exceptions in subdivision (b) relate to phonorecords).

The types of contracts we're talking about fall under this provision. My understanding is that this law is based on the law that was used to break up the studio system, which really did try to tie people down in the way Kevin and Michael are suggesting. You simply can't do that any more.

From a New York case:



> "New York courts adhere to a strict approach to enforcement of restrictive covenants because their enforcement conflicts with the general public policy favoring robust and uninhibited competition.  That is, New York public policy militates against sanctioning the loss of a person’s livelihood. Thus, a restrictive covenant will be rigorously examined, and enforced only:
> 
> 
> necessary to protect the employer's legitimate interests;
> ...



Florida is pretty similar to New York, and in addition I found this statement by an attorney: "Florida’s statute provides some guidance as to whether the duration is "presumptively" reasonable and unreasonable. For instance, in the case of an employment non-compete – less than 6 months is presumptively reasonable and more than 2 years is presumptively unreasonable."

In addition, even during the valid term of such agreements, where a restriction might be in place (up to seven years from commencement at the outside, in California, for example), you can't get specific performance. In other words, the Court isn't going to force you to write for that publisher. The reason for this is the Constitutional prohibition on involuntary servitude, which of course trumps State law and contract language in every State in the union. What they will do if you were still under a valid term of agreement is try to assess damages.

We could go through an look at all fifty states, but you're not going to find much (or any) variation from the reasonableness requirement, both in terms of time and geographic scope. There may be some countries in the world where you could sign an agreement tying yourself to a single publisher for the rest of your life, but the U.S. is not one of them.


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## Devor (Sep 24, 2012)

One thing to consider, though, is that most of these timeframes begin _after_ the terms of the contract.  So in Florida, it's six months to two years after . . . what?  If you're signed on to a six book deal, it runs the course of all six books.  If you've got a deal to publish book one, I'm guessing they've got at least an option on book 2.

My guess - just a guess - is that if they can no longer make you do a book signing, then the agreement has probably ended and that's when these time frames start.


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## Steerpike (Sep 24, 2012)

Keep in mind that in California the terms of the Agreement can't extend beyond seven years past commencement of services, regardless (as the author you can choose to continue under the contract beyond that). So if you enter into a contract for a ten book deal and you write for a decade, that agreement and any kind of non-compete that goes with it should end the moment you decide it does. Statutory law prohibits the other party from binding you beyond that.


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## Kevin O. McLaughlin (Sep 24, 2012)

Steerpike, thanks. That's exceptionally valuable information.

If you ever did try to challenge this sort of thing, somehow, I think you'd be a hero to a lot of writers who are upset about this whole thing.

I guess it all comes back to my bits above. How long a wait before you are allowed to publish another book is OK for the writer? Is it OK to go without income for a year? Two years? Three? Not really liking any of those options, to be honest. I mean, a publisher might not sue if you indie pub an unrelated book six months after signing a contract with them. But they might (and one publisher did, recently, cancel a contrsct and force one writer to return her entire advance because she self published a collection of short stories unrelated to the book they had bought rights on).

Being sued is, for most people, messy, expensive, distracting, upsetting. Not publishing anything for even a couple of years out of fear of being sued for doing so isn't an option for a professional writer. So...it's a nasty place to be, even if you're absolutely right.

I would not sign any publishing contract with a non-compete clause. I would recommend other writers either remove them or, if the publisher refuses to remove them, reject the publisher.


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## Steerpike (Sep 24, 2012)

Thanks, Kevin.

I don't know how far a challenge would get, especially here in California, because if the publisher's argument rested solely on that ground it wouldn't get far into the legal process. Like I said, I will put a non-compete clause into a contract at a client's request. I tell them it isn't enforceable (and usually they already know that). But they bet on the idea that the employee who signs it might not realize it isn't enforceable and might refrain from competing with them post-employment.

I would also recommend taking such a clause out of a contract. As a first-time, unproven author you may not have the clout to do something like that. The publisher might say take it or leave it, in which case it helps to know the extent to which it is enforceable. You aren't going to go without income, however, because I don't think an agreement like this could be used to keep you from publishing once the agreement is over, so you'll either still be under contract with the original publisher and publishing through them, or you will be free to publish your own material with someone else. That's my thought on the practical effect. I doubt anyone will be able to find a single court case where an author has been prevented from publishing anything at all, for any length of time, once the contract with their publisher has terminated. No court is going to say "OK, you can't make a living for two years." That's unreasonable on its face.

There are other potential pitfalls, but those probably get beyond the scope of this discussion. If you were going to have any kind of clause that prevents you from publishing with others (or on your own) during the active Term of the agreement, for example, I'd want to see minimums in terms of revenue or I'd have a problem with it. I also generally include provisions that say if the publisher or production company doesn't do X within a certain time period, rights revert and the agreement ends regardless of the stated Term. 

There are lots of ways to address these issues.

I don't know how much marketing this publisher will actually do. Since they are doing this specifically for the electronic market, maybe they will do more than usual. Also, since some people have a bias against self-published word, maybe being published through them would make a difference. Again, I don't know. I think you have raised a number of legitimate questions regarding entering into a relationship with this or any other publisher, and I don't want to minimize the importance of those considerations. I just wanted to clarify that the idea you can be tied to a single publisher or prevented from working for your lifetime, or really for any period of time post-contract with the publisher, isn't one that should strike much fear into a writer


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## MichaelSullivan (Sep 25, 2012)

All good information Steerpike - thanks for that. But...these are not employment contracts we are talking about.  The publisher is not an employer nor is the author an employee.  These are the transfer of intellectual property so I'm not sure that these statutes apply to this. Can you shed any light on that aspect?


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## Steerpike (Sep 25, 2012)

Michael:

The California statute is directed to any contract for personal services, so it doesn't require that the person providing services be an "employee." Most of the noncompete law is directed to employment contracts, because that's where they usually come up. You generally cannot get specific performance of these contracts anywhere in the U.S., due to the Constitution. I don't know how many other states have statutes directed specifically to personal service contracts, but any kind of contractual non-compete is going to be scrutinized in a similar fashion. Whether other states might go longer on such agreements, I don't know. I don't think it would be possible to tie up a writer for life, so they can only publish through one publisher.

That said, as I said above I would not recommend signing an agreement you can't live with on its face, regardless of whether you think something is unenforceable. If I'm representing the person providing services, I strike those kinds of provisions when I get the agreement. It really isn't in the publishers interest to have an unreasonable noncompete in the agreement, but that doesn't mean they won't try it. People still use them in California even though they are void as a matter of law. If a person doesn't know what is enforceable and can't or won't hire counsel, then you might still get some effect from them here.


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## MichaelSullivan (Sep 26, 2012)

Thanks again Steerpike. I'm still not sure a literary contract has any thing to do with "personal" issues. But I think it can. For the record, I eventually got my non-compete de-fanged to the point where I could sign it, but it was not easy.  "Just striking it" (which we tried first) was 100% out of the question.  I'm glad to hear that you think they aren't enforceable....I still think it is a very dangerous dagger.  If what you are saying is true, then I really wish publishers would remove them from the contracts as it is probably the single biggest provision that is of concern to self-published people thinking of switching to traditional.


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## Kevin O. McLaughlin (Sep 26, 2012)

I've spoken with a good number of indies who've walked from traditional contracts over the non-compete. I agree completely, Michael. Right or not, the *impression* among indie writers is that these clauses are an attempt to lock down a writer's output.


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## MichaelSullivan (Sep 27, 2012)

Kevin O. McLaughlin said:


> I've spoken with a good number of indies who've walked from traditional contracts over the non-compete. I agree completely, Michael. Right or not, the *impression* among indie writers is that these clauses are an attempt to lock down a writer's output.



Well for me, it's just too big a risk.  It wasn't easy getting it changed, but there was no way in hell I would have signed it as originally presented.


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## The Din (Oct 16, 2012)

Submitted yesterday, despite all the naysayers. And yes, if they're desperate enough to offer me a contract then I'll read the thing before signing. Submitting doesn't lock you in to anything, so hopefully you other scribes weren't scared off by all the legal mumbo jumbo. (Not that I'm not grateful for all the educated warnings.)

I think however it turns out, all the thousands who entered are going to be following the twelve new authors Harper picks up pretty close, curious to read the submission that 'beat' theirs. Easy way to make a whole bunch of new readers, imo. Thanks again steerpike for posting the thread.


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## MichaelSullivan (Oct 16, 2012)

The Din said:


> Submitted yesterday, despite all the naysayers. And yes, if they're desperate enough to offer me a contract then I'll read the thing before signing. Submitting doesn't lock you in to anything, so hopefully you other scribes weren't scared off by all the legal mumbo jumbo. (Not that I'm not grateful for all the educated warnings.)
> 
> I think however it turns out, all the thousands who entered are going to be following the twelve new authors Harper picks up pretty close, curious to read the submission that 'beat' theirs. Easy way to make a whole bunch of new readers, imo. Thanks again steerpike for posting the thread.



Totally agree, there is no harm in submitting...and I'm one of the biggest naysayers. It really all depends on what the contract says.  I'm not sure I'll be buying the various titles to see "how good they did" but I will certainly be watching three important metrics.

1) What they are pricing the works at
2) What Amazon rankings the books get
3) Their review numbers/rankings


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