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Harper Voyager / HarperCollins Taking Unagented Manuscripts

Steerpike

Felis amatus
Moderator
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.
 

Steerpike

Felis amatus
Moderator
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.
 

Devor

Fiery Keeper of the Hat
Moderator
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.
 

Steerpike

Felis amatus
Moderator
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
apprenticeship as provided in Chapter 4 (commencing with Section
3070), may not be enforced against the employee beyond seven years
from the commencement of service under it."

(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;
  • reasonable in time and area;
  • not unreasonably burdensome to the employee; and
  • not harmful to the general public.

BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (N.Y. 1999)."

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.
 

Devor

Fiery Keeper of the Hat
Moderator
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.
 

Steerpike

Felis amatus
Moderator
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.
 
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.
 

Steerpike

Felis amatus
Moderator
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 :)
 
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?
 

Steerpike

Felis amatus
Moderator
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.
 
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.
 
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.
 
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.
 

The Din

Troubadour
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.
 
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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