Option and Non-Compete Clauses

When you enter into a publishing contract, it’s not unusual to see an option clause and/or a non-compete clause as part of it. While these terms sound intimidating, they’re actually pretty simple in practice. It’s worth understanding how they work so you don’t run afoul of your contract terms with your subsequent writing.

In simple terms an option clause basically gives the publisher a right of first refusal on your next work. Depending on how the clause is drafted, it might relate to any kind of work you write next (e.g., fiction, non-fiction, specific genre, etc.) or it could be limited to works of the same kind as the contracted work. For example, if you write a non-fiction trade book, the option clause may be limited to your next non-fiction trade book.

When you read through your contract, check to see if there is an option clause, and, if so, what it covers. If you want the clause to be restricted to particular kinds of works, see if you can negotiate that with the publisher. The likelihood is that a nonfiction publisher won’t be interested in, say, a romance novel if that’s what you write next, but it’s worth making sure the clause is limited in a way that makes sense for avoidance of doubt.

People often ask me whether it’s better to have an option clause or a multi-book deal. Some publishers will contract for a second book in the same contract as the first (two-book deal), and some will only ask for an option. Neither is necessarily better or worse. It really depends on the circumstances. If things don’t go well with the first book, you may not want to be tied to the same publisher for the second under a multi-book deal. If you’re not sure what you’re going to write next, an option may give you more flexibility. It really depends on your work, the publisher, and lots of circumstances beyond your control, for example, what the publisher is prepared to offer in the first contract.

A non-compete clause basically says that you won’t write and/or publish a book that might compete with the first book for a particular time (say, 6 to 12 months) after signing the contract, or perhaps after publication. So if your contract has a non-compete clause make sure you’re happy with the terms and try to renegotiate if you’re not.

Option clauses and non-compete clauses are part of the broader contract negotiation process. It’s worth understanding them to the best of your ability and if you have any confusion, ask for help if you can find a lawyer or agent or knowledgeable publishing friend.

Usual disclaimers apply to this column as always: this is not legal advice, but hopefully helpful information for those contemplating new publishing contracts in the New Year!

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