My topic this month is something that any business person should be familiar with, only a lot of writers aren’t business people. Many of them have never negotiated a contract and are unaware that once they sell a book, they and their writing become a business. Most publishers, from the big six to the small presses, want the right of first refusal on your next book.
The concept itself isn’t that advanced. Once they have one of your books lined up for publication, a publisher will want to be the first to see your next book, and they don’t want anyone else to have a chance to buy it before they do. Many writers see this as a benefit, knowing that the editor and publishing team they already work with will consider taking on the next project. So why an entire blog post about this contract provision? Because I believe it is taken to an extreme and abused in the LDS market. A lot of small LDS presses want right of first refusal on everything you write after you publish with them. Sometimes it says as much in the contract. Everything you ever write has to go to them first. Even if it’s all wrong for them, and even if you didn’t enjoy your publishing experience with them. There’s also a power imbalance here that can stop your writing career cold. It’s extreme, but it does happen. Specifically:
There is often no provision stipulating how long they have to consider your next book. Anyone who’s submitted a book around knows that a publisher can take a year or more to consider a book and decide whether or not to publish it. Even if you know the book you’ve written is all wrong for your publisher, under this provision they get to sit on the project for as long as they like. Sometimes this can get downright malicious. A colleague of mine, working with a non-LDS small press, saw her next book go into submission purgatory indefinitely. She and her editor had a disagreement and he retaliated by holding her career hostage. While a turn like this requires someone with a bad motive, the problem with this contract provision is that it doesn’t safeguard against a person with a bad motive. Power goes to people’s heads, so stories like this aren’t unheard of.
Does this mean you refuse to have a right of first refusal in your contract? Not necessarily. They are the norm. The important thing is that the right have a clearly defined scope. Here are some clauses that you’ll want to consider including.
A time limit on how long they have to consider the book. Rather obvious, no? I don’t think I need to spend a lot of time on this, but the publisher does need to be under some time pressure to decide whether to fish or cut bait. They should never have the power of holding up your career. I don’t know what a standard time limit is. The one I’ve seen bandied about is three months. A time limit doesn’t just prevent the worst outcome, it works to the benefit of the author. It means that the next time you submit, there’s at least one publisher who’ll get back to you in a relatively short amount of time, thus cutting down one of the years you might spend waiting to sell that next book.
A limit on the types of books they’d have the right of first refusal on. Even with a shorter time limit, a submission to your old publisher of your new book could still be a waste of time. What if you wrote them a how-to book and your next work is urban fantasy? Why bother giving them three months to stall your submissions process? Any right of first refusal should be limited in its scope to the type and genre of book you’ve already published with the house.
Only one right of first refusal at a time. Any clause in your contract that makes a blanket statement that the publisher gets right of first refusal every single time you write a new book is overreaching. They are trying to control your career decades in the future, and this is unnecessary. Rather, each agreement should contain the right of first refusal for the next work, and the parties should negotiate whether this provision stays in or out. One publisher, I’ve just been informed, wants right of first refusal for at least twenty-one years. Okay, so this trips the lawyer geek in me. Why is twenty-one years significant?
It’s the time period in the Rule Against Perpetuities. I’ll save you the lecture, but in summary, the Rule Against Perpetuities ensures that no legal entity or agreement can endure indefinitely. It’s to prevent us today from being bound by agreements that made sense in the middle ages, and to prevent us from imposing our dated desires on people centuries from now. If the publisher is aware of the Rule Against Perpetuities, I would argue that they’re aware they want too much power. The R.A.P. shouldn’t come into play in publishing except for in one instance: copyright law. This is why copyrights expire 70 years after the author’s death (with the exception of Peter Pan – but that’s another story.) That a publisher should want to control your submissions for as long as legally possible is overreaching, in my opinion. Finally:
Once you are successful, you want that right of first refusal gone. Why? Because of what’s called an auction. Now, people know what auctions are in general. In publishing specifically, they occur when the same book is offered to multiple houses and they bid for it. Auctions are a powerful tool in an author and agent’s arsenal to push the amount offered for an advance higher than would be possible any other way. Furthermore, they are a recognition of the relative power of the parties. An auction is that turning point when the author is able to start calling the shots. As the creator of the content for sale, a successful author should reach this tipping point sometime in their career. An eternal right of first refusal is a specific attempt to prevent an author from reaching this tipping point, and it’s imposed on the author when they are new to the game and relatively powerless. An unacceptable abuse of power, in my opinion.
So, okay, let’s assume now that you’re a writer with a contract with a right of first refusal in it that you want taken out. What are the usual arguments that you’re going to hear from the publisher? There are a few that crop up all the time.
It’s actually a benefit to you as an author. This is spouted in the LDS market all the time, and it’s complete garbage. How can I prove it? If it’s really of benefit to only the author, then no publisher should have any problem ditching it without argument. I’ve yet to see a publisher do this. Clearly it doesn’t benefit only the author. It might be of some benefit to the author to know that one publisher will review their next book, but a publisher isn’t out to be charitable here. I have little patience for bogus spin, and this one’s way too common. Don’t fall for it.
It’s standard in the industry. This is the “everyone else is doing it” argument. It always cracks me up when people ascribe this to teenagers. Everyone uses this argument – and we all know the answer: that alone doesn’t make it a good one. Same goes for right of first refusal clauses. Explore why they’re so common and decide for yourself if they’re for you.
You don’t get a contract if you don’t accept this. Ultimately, this is the one you can’t refute unless you have another offer, and that’s the way the power balance is when you start out. The only way to refute it is to go with someone else, or go indie, which may or may not be the right decision for you. Now that indie is an option, it’s always worth having it in your back pocket, ready to pull out if traditional publishers try to hold you over a barrel.
As with any business agreement, the deal you get is about the balance of power. Go in with your eyes open. Many authors have launched successful careers with a bad first contract starting out, but don’t get locked into a provision that will never allow you to grow. Plan for contingencies, and your own success is a contingency. I can’t give concrete advice on how strongly to weigh it, that’s up to you, but don’t ever disregard it. Accept a right of first refusal only if it benefits you in some way.