Right of Refusal Clauses

[Okay, I’m done ranting. This is my real post for today.]

What is the purpose of a right of refusal clause in a publishing contract. They publish my first novel and then they want claims on everything I write for the rest of my life?

I have heard rumors that there are some publishers who ask for all rights to all your future works, but I have honestly never seen it in writing. Nor have I seen the non-compete clause that says if you end your contract with them you can’t publish with anyone else for X number of years. (I’ve heard both 3 and 5.)

A good contract protects both parties given various eventualities. We have a right of first refusal clause in our contract that simply says to submit your next work to us first. If we reject it, you are free to shop it and any other subsequent projects to anyone you please.

A publisher takes a huge risk in signing a new, unknown author. Right of refusal compensates the publisher for taking that risk. It requires a certain level of marketing ($$$) to get your name and your book out there. It’s not like you have a reading public waiting for your book to hit the shelves. We have to convince readers that they want to buy your book. Once you have a following, marketing becomes a little easier, with each new book advertising all previous books.

That said, right of refusal should only apply to the next novel and there should be some time limit on how long the publisher has to accept or reject.

And you should never, ever sign a contract with a “non-compete” clause that prevents you from submitting to or publishing with another publisher after the first contract is terminated. That is just wrong!

In my opinion, the only time a non-compete is ethical is if I (as the publisher) want a book written on a particular topic–say, 101 recipes using green jell-o–and I hire you to write this book according to certain specifications. Then I could say that if the contract is terminated before the book is published, you have to wait 1 or 2 years before you write and publish a book of recipes for green jell-o with another publisher. That’s because it was my concept, my idea, and basically you are doing a work-for-hire.

But if Green Jell-o (Vol. 1) was entirely your idea, and I don’t want to do Green Jell-o (Vol. 2), but my competition thinks it’s groovy, then you should be free to take it to them the minute after you receive notification of rejection from me.

That doesn’t mean you’ll get the rights back to Green Jell-o (Vol. 1) if it’s still selling. But there should also be a clause in your contract that states under what conditions the rights revert to you if I let Green Jell-o (Vol. 1) go out of print.