Mark Terry

Sunday, January 23, 2011

Book Contracts 101, Part 11 (Right of First Refusal)

January 24, 2011
And on and on we go:

9. Right of First Refusal: Author agrees that it will offer Publisher the first right to publish Author's next work of fiction/nonfiction on the same terms and conditions as those contained herein, excepting, however, that Author may not be required to provide Publisher with an additional "Right of First Refusal". Publisher shall have a period of sixty (60) days from the date of Author's submission of a completed manuscript in publishable form to Publisher within which to review and make a determination as to whether or not Publisher will publish the new work.

This clause has other names, although the one that comes to mind is Non-Compete Clause, but there's another name I can't quite remember. I was curious, so I dug up one of my other contracts to see how it was handled. I have non-compete clauses in some of my work-for-hire and nonfiction contracts that are worded differently, as well.

So here it is from a different publisher:

22. The Author hereby agrees to submit to the Publisher his next book-length work in this series. This book may be submitted in the form of a proposal consisting of three chapters and a summary. The Publisher shall be entitled to a period of 60 days after receipt of the proposal within which to notify the Author of its decision. If within that time, the Publisher shall notify the Author of its desire to publish the manuscript or recording, it shall thereon negotiate with his [him/representative?] with respect to the terms of such publication. If within 60 days after receipt of the proposal the parties are unable to arrive at a mutually satisfactory agreement for such publication, the Author shall be free to submit his manuscript elsewhere.

Okay. Take a deep breath here. First, I like the 22. clause better than the 9. clause, but these are not my favorite book clauses. Let's talk about a few points.

The publisher, primarily, is trying to make sure that if they publish your book and it suddenly breaks out and makes a million bucks, they have the first shot at your next book. That actually seems reasonably fair, although you might feel differently if you got a $1000 advance, the book went crazy and sold 250,000 copies in hardcover and 1,000,000 in paperback and publishers were coming to you offering you $1,000,000 book advances for your next book but you had to tell them, "My old publisher has to see it first." Particularly if it contains this line: it will offer Publisher the first right to publish Author's next work of fiction/nonfiction on the same terms and conditions as those contained herein, excepting, however, that Author may not be required to provide Publisher with an additional "Right of First Refusal".

That line at least infers that the publisher is completely within their legal rights to again offer you $1000 for your next book and the same contract terms. Of course, they'd be stupid to and you'd be even stupider to accept it. You just have to stay cool and not freak out and realize that you've suddenly become a hot property. Just because you're offering them a first look doesn't mean you have to accept their deal. The next line says you can negotiate, and in that situation, you should.

In the second version of this clause, I like that they offered a contract based on a proposal. They are also very, very clear that if you can't come to terms with a new contract, you're free to go market it elsewhere.

A couple other points about the differences. The first version also suggests that should BOOGER KNIGHTS be a standalone OR a series, they have the right to take a look at any other novel OR nonfiction book that I might produce and start marketing. For instance, let's assume that BOOGER KNIGHTS was a kids' book about time-traveling 7th graders that go back in time to become knights of the round table. It seems like that would be a series, and so the publisher wants more of it. But let's say that due to weird publication schedules and your ability to crank out a book every 3 or 4 months that you've since written a darkly erotic thriller aimed at adults. By rights, the publisher has the right to see it first before you go marketing it somewhere else, according to the wording of this contract.

The second version of this clause expressly states that the publisher is really only interested in seeing your next book-length work featuring that series character. That isn't necessarily to say they won't look at your darkly erotic thriller aimed at adults, it's just that contractually, you're not obligated to show it to them.

Just a few points about this. Some writers have no issues with either version, they're loyal to their publisher, they write one genre, one book a year, and that's it.

Then there are those of us who write fast and in different genres, including nonfiction, and they don't want to be tied down to one publisher--or feel like they're in handcuffs each time they finish a manuscript that one publisher might tie up for 2 months when the writer knows damn well they're only interesting in publishing a book about middle-school time travelers.

By and large, I haven't been too tied down by these clauses either way. Some agents suggest that these clauses are meant to be broken, and let's just say you didn't hear that from me, but really, what are they going to do? They could tie you up in court if there was a lot of money involved, but why? They probably wouldn't win anyway, and there's been a fair amount of precedent, including between Tom Clancy and the Naval Institute Press, to suggest this tends to lean in the direction of the IP holder.

Anyway, I can only give you a little thought. The first contract clause: I had written a book with a different character and we marketed it anyway, because I fully intended to follow up with the same publisher with the same character (i.e., Derek Stillwater). They were fully cognizant of my intention. Eventually I contacted them and asked them if they wanted to read it, telling them a little bit about the book. Their reaction was essentially: no, we're not ready to publish more than one book a year with you, so get us the next Derek Stillwater, please. Although I'd be glad to read the new book (even though I have absolutely no intention of publishing it, under your name or anyone else's).

Well, such is life, at least in publishing. My only suggestion when it comes to the clauses is to think very seriously about what type of writer YOU are, how happy ultimately you are with the relationship you have with your publisher, and to tweak it as needed. And ultimately, not to worry too much about it. Most publishers, if you're a typical (i.e. "midlist") author, won't be too chuffed if you go somewhere else with a different character just as long as you continue to cough up the books you're writing for them on schedule with the same quality.

I noticed a few years back that Janet Evanovich was publishing 2 different series under her own name by 2 different publishers, and it was clear in the article I read that one of the editors was fairly annoyed about it (my guess would be it was the publisher who published the Stephanie Plum novels who was annoyed), saying it caused some scheduling issues having them at different publishers. (My guess would be her taking millions of dollars worth of business to a competitor might have had something to do with his attitude as well). Mostly I had two question: 1. Why did she do that? And 2. What did her Right of First Refusal clause read like?


Blogger sex scenes at starbucks, said...

Can I just say this is a brilliant series? I love it!

I have a Right of Refusal clause in my new contract, but it specifically only refers to series, not to the next book. I thought that was quite fair, actually, and as I'm currently planning to stay with them for this series, it's cool. Combined with the buyout clause, I think I'm pretty safe if the books go crazy making money.

7:25 AM  
Blogger Mark Terry said...

Glad it's useful.

10:08 AM  
Anonymous Anonymous said...

Very useful information, Mark! I do have a question as a newbie author. The right of first refusal clause in my contract (concerning only sequels, identical theme/characters)is extremely basic, stating that if they "do not accept for publication this additional work within 60 days of submission, it will be considered refused and AUTHOR will be free to market rights to the new work without encumbrance." It doesn't mention a thing about "same terms" as the original work. My question: Am I correct in assuming I'll negotiate a new contract specifically for this new work--and if we can't agree on the terms within 60 days, I'll be free to seek publication elsewhere? I'm very concerned about the communication between myself and my publisher and their lack of marketing (I've done most of it myself), and would like to use this clause to my advantage.

Thanks for your help!

9:23 AM  
Blogger Mark Terry said...

It would seem so, although I'm far from expert, and I can't really tell without reading the whole clause.

The Author's Guild gives members a free read-through. You can check on that here:

Otherwise, you might be better contacting an agent. If you say you intend to negotiate it yourself, but aren't confident in that clause, a lot of them would look at it for you. My former agent is Irene Kraas and she'd probably look at it for you.

Asking an attorney with experience in this area for a quick look probably would not cost you a fortune.

9:29 AM  
Blogger Julie Parker said...

Hi Mark. I have signed a ROFR with a publisher which states that they may be granted any future works except for other books currently with an agent or a publisher under review. They also cannot have first rights to any series I have out with other publishers. I wonder though, I have several books being released back to me since they are at the end of their contract terms. I'm wondering if you could tell me if I must first send these works to the publisher with the ROFR clause?



11:53 AM  
Blogger Mark Terry said...

Julie, I'm not an agent so I couldn't say for sure, and I couldn't say for sure without actually reading the wording of the ROFR. With them not having first rights to any series out with other publishers being in the ROFR, that sounds like it would be covered, particularly since the "first rights" have already been used and presumably you're planning on self-pubbing them or sending them elsewhere.

1:22 PM  
Anonymous Anonymous said...

Does this first right of refusal apply to book agents, as well? I agented a book deal for two upstart authors in 2006. According to my agent-author contract, I had first right of refusal on the second book. the authors had to pitch to me first, as their agent, prior to going to any other agent, though the publisher of their first book has a different right of first refusal--to publish the second book. Do the authors have the right to disregard pitching the second book to me, their agent on their first book, the sole and exclusive agent with first right of refusal terms on the agent-author contract, signed by both authors and the agent? What should I do to pursue this issue? The first book did not make any revenue, therefore, as their agent, they were not given any further revenues other than the advance, so contact was minimal with both authors. In this time, I found out that they had a second book published--without contact me. Can the authors get away with publishing the book, without contacting me first, despite that it is clearly outlined in our contract that I have first right of refusal on their second title?

5:08 PM  

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