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Harper Voyager / HarperCollins Taking Unagented Manuscripts

Myshkin

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

The Din

Troubadour
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.
 
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.
 

Steerpike

Felis amatus
Moderator
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.
 

The Din

Troubadour
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.
 
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.
 
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.
 

Steerpike

Felis amatus
Moderator
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.
 
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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-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.
 
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.

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.
 
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.

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."
 
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.
 

Steerpike

Felis amatus
Moderator
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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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? ;)
 
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?

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?

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.

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.
 
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.
 
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.
 

Steerpike

Felis amatus
Moderator
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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