Contracts Committee Alert: Non-compete and Option Clauses

The SFWA Contracts Committee believes there are serious problems for writers with the non-compete and option clauses in many science fiction and fantasy publishers’ contracts. The non-compete language in these contracts often overreaches and limits authors’ career options in unacceptable ways. Writers may choose to bring out a range of books from different publishers — science fiction from one publisher and fantasy from another publisher, for example — and may have to do so in order to earn anything like a living wage. The problem becomes even worse for hybrid authors who self-publish works in parallel with their traditional publications. Several contracts that we have seen include overlapping restrictions that could keep the author from publishing another book for more than a year.

Authors also retain audio, foreign language, and other rights with the intention of licensing them elsewhere. Language we have seen in these clauses attempts to make authors responsible for how these other rights are used, something that clearly places an unreasonable burden on them.

Authors should think carefully about signing any contract with these restrictive clauses and should negotiate any limitations in the clauses that would interfere with their writing agendas. There are, in fact, times when it would be best to walk away from contracts with these bad clauses.

Our recommendations:

Any limitation on the author’s ability to write new works at any time is unacceptable and should be deleted.

“Competing work” should be defined in the contract as clearly and narrowly as possible, and preferably limited to a work in the same series (whether one is planned or not). The burden should be on the publisher to prove that another work published elsewhere by the author would reduce their sales.

Any non-compete limitation that is tied to publication of the work covered by the contract should end on a specific date.

Any reference to the author diminishing the value of rights granted to the publisher by selling rights that the author retains should be eliminated as it is vague, unenforceable, and unacceptable.

Option clauses should be crossed out or defined as narrowly as possible. If the option clause can not be struck out entirely, the committee recommends that the author amend the clause so that they only need to submit a proposal or synopsis of a work and not the completed work to satisfy the publisher’s option. In addition, we recommend that the deadline for acceptance or rejection of the work should be no longer than 30 days, starting when the proposal is submitted. Rejection or failure to respond within the time specified should end the option obligation.

~SFWA Contracts Committee