Sunday, March 18, 2007

The Options Clause.

Hi all, please note this post is not by me but was written for us by HH over at the Erotic Romance Writers' Forum. There are a range of other contract issues that authors should know more about so if you want to convince HH to write us a full article please comment :) :

The Options Clause:

Publishers love 'em. Agents and authors hate 'em. It's a common sticking point in contracts.

An options clause is focussed not on the book under (putative) contract, but on your next book. It gives the publisher first crack at your next book. The publisher's argument is: We're investing money in you, and we want a promise that you're in it with us for the long term. The author's argument is: I'm investing my novel (and my sweat, blood, heart, ego, ten thousand hours hunched over a keyboard, etc) with you, and if you want me to come back to you with my next book you have to earn my loyalty by doing a good job with the first novel. They're both right, but they have to find a common ground they're both willing to live with.

Best case scenario: there is no options clause. Worst case scenario: The options clause includes everything you will ever write for the rest of your life under any pseudonym, including your memoirs when you're 103 years old and are finally willing to tell-all about that bordello you operated in Uzbekistan when you were just a young, naive baby dyke living with a drug dealer.

What the options clause generally says is: The author agrees to submit her next work* to the publisher. The publisher will then look at it and decide** whether to buy it*** or not****. The publisher tries to keep it as vague as possible. The author, or her agent, try to limit it as much as possible.

*Work: generically speaking, this could mean anything. Poems, textbooks, trilogies..... Is it singular or plural works? Is it limited to completed books, or partially completed books, or will they look at ideas scribbled on the back of a napkin*****? (New authors generally have to submit completed books or detailed proposals; Stephen King type authors literally can sell an idea scribbled on a napkin.) Do they want to see every book you write for the next thousand years? Get a number, get a definition, get a limit. Number of future works. Final ms length/word count. Genre. Pseudonym(s) used. Submission format and length. Circumstances under which the options clause expires. Limit it to a)what you're comfortable with, and b) what book types etc that you think they could successfully publish and market. Ideally, it should be limited to one book, in that genre/series, under that pseudonym. Most publishers are pretty cool with that: Tor might want your next fantasy novel, but they'd have no use for an angsty literary novel even if it as as moving as Brokeback Mountain. Harlequin might option your next two books, but they'll limit it to romances because they don't want to have to waste time rejecting your serial-killer murder mystery.

**Decide: How long can they take to decide? When do they have to get back to you with a decision?

***To buy it: if they want the next book, is it automatically under the same conditions as the original contract, or can you negotiate? How long can these negotiations go on? If you don't like their offer on the next book, can you just say no? If not, what conditions do you or they have to meet?

****Or not: If they decline to publish your next novel, can you submit it elsewhere without limitations? Are there limits on when, where, how you can publish books with other publishers? Does the options clause end if they decline your next novel, or does it extend to the one after that?

edited to add: *****napkin (Yank) =serviette (UK/Commonwealth)

Each author's needs will vary. Someone who writes one lesbian formula romance every four years isn't in the same boat as someone who belts out two lesbian mysteries, one bisexual erotica, one ChickLit, and two heterosexual bodice rippers each year. It's flattering that a publisher thinks they'd want to buy your next work, but always consider the worst case scenario and make your decisions with Murphy's law in mind. Lots of things can go wrong -- or right. Your book could tank. Your book could sell like wildfire, and Random House would be beating down your door. Your wife could run off with your editor. Hope for the best, but read contracts as if you're preparing for the worst.

and, as an addendum:

The latest contract weasel-clause, from the ever-helpful blog of brilliant agent Kristen Nelson:

Pretty much every publishing contract has the "Author swears they didn't plagiarise their novel or fake their nonfiction" clause, and that's perfectly reasonable. That clause looks something like:

“The Author warrants, represents and covenants: that the Author owns all rights and licenses herein conveyed and has the full and sole right and authority to convey all such rights and perform its obligations hereunder; that the work is original with the Author in all respects, except for any portion which has been previously published and is identified as such; that, with respect to works of nonfiction, all statements contained in the Work as published are true or based on reasonable research for accuracy: that the Work is not in the public domain and is or may be validly copyrighted or registered for copyright in the United States and…”

But now, she says, publishers are trying to sneak into that clause a sentence that says: "“that the Work will be the Author’s next book-length work (whether under the Author’s own name or otherwise)” -- and yanno what that means? You're promising that you won't publish any book with any publisher before this book you're currently contracting hits print.

Why, the sneaky little buggers! As Agent Kristen says: "That’s not a true warranty. That’s a no-compete clause." And, as she further warns: Authors who are going it alone, without an agent or lawyer, need to know to look for these weasel clauses, need to know how to spot them, and need to know enough to get rid of them.

So there you have it. Now you know.

If a publisher wants a no-compete clause, they should be up-front about it. And if they're not up-front about it, maybe you need to ask yourself, what else aren't they being honest with me about?


Sara Freeze said...

Thanks for including this information on options clauses! Many writers are unaware of what this actually means, so it's great that you're publicizing it!

Your Fellow Romance Diva,


veinglory said...

Thanks to HH. I tried to post on this myself by basically lacked a strong enough understanding of the issues.

Portia Da Costa said...

Very informative post! Ack, I hate options clauses...

Jules Jones said...

Thanks, Emily. This is something that I'm concerned about, as I gather that at least one big erotic romance publisher has an option clause that basically says they have first dibs on anything you write thereafter, and I'm seeing writers who are signing up to it either without taking it seriously or without understanding what that actually means to their career.

My own publisher's contract has an option clause, but it very clearly states that it only covers new books in a series/universe that they're already publishing, which is a perfectly reasonable requirement in my view so long as there's a sane limit on how much time they have to consider the book, and what terms they can offer -- which in this case there is.

I'd be very wary of anything that says I've got to give a publisher first look at anything more broad than next book in a specific genre, or that doesn't specify a sensible time in which they have to use it or lose it.

veinglory said...

Not being one to dance around issues let me say that my basis for asking for this post was Ellora's Cave's current contract which has one of the more stringent options clauses out there at the moment. That said, if you don't want to be fully exclusive to a publisher that requests this, ask for an ammendment--it is a fairly routine matter. If you can;t negotiatethe deal you want it comes down to making a choice :) EC sell a lot of books, it may still be worth it. That is for the author to determine.

Rhonda Helms said...

This is SO wonderful, especially for authors who rep themselves. THANK YOU for posting your thoughts on this!