• July 23, 2014

Reading the Fine Print

If there is any paragraph worth reading in a book contract, it is the one about whether you will have the right to publish a work for the same audience in the future.

Those provisions are called "covenants not to compete" or "noncompetes," and if you look at any recent book contract, there is a good chance you will see one. As director of copyright and scholarly communications at the University of North Carolina, I deal with this issue often.

My first piece of advice for authors: If you are about to publish a work, I recommend reading the noncompete provision closely before you sign the agreement.

A well-drafted clause will be balanced enough to give you creative freedom to publish other works in your field and give your publisher protection for its legitimate business interest in maximizing sales of your book. Noncompete provisions that do not achieve that balance will look something like this:

The author will not during the term of this agreement, write, edit, contribute to, or participate in the publication of any work of a nature that may be considered by the publisher to be likely to compete with or to affect prejudicially the sales of the work or the exploitation of any rights in the work granted to the publisher under this agreement.

That example gives very broad rights to the publisher. It prohibits the author from even "contributing" to any other work that may, in the publisher's opinion, compete with your book. Contributing could include editing or writing an introduction to someone else's book.

A more narrowly tailored provision would clear up any ambiguity so that authors (and other publishers) would know that they may work on such projects without asking permission.

Another reason to be cautious about noncompete provisions is that they can last a long time. Publication agreements are generally drafted to last as long as copyrights, which are now 70 years longer than the life of the author. For those of us who do not plan that far in advance, it makes sense to think about what other works we may want to write before agreeing to unnecessary barriers.

It may also be useful to know that if an author were to challenge a broad noncompete clause in court, the author would probably win. I don't often place bets, but I would be willing to wager that no court in the United States would enforce the example given to you above without gutting it to give the author much more freedom.

Generally, noncompete covenants are only found to be valid if they are limited in duration (such as one or two years) and scope (such as geography or subject matter). But since faculty authors are unlikely to go to court to get the provision narrowed or declared void, it may end up being enforced as a practical matter.

Professional courtesy among publishers may prove to be a strong force in this area. If I write a book about copyright law for law school students and sign a broad noncompete agreement with publisher A, what will happen five years later when I am asked to be coauthor of a new copyright law textbook for publisher B? Once publisher B finds out about the noncompete clause with publisher A, B will either ask me to hunt down someone at Publisher A to get written permission to proceed with the new book, or it may find a new author.

My second piece of advice: To avoid either scenario, I recommend working with your publisher to craft a provision that limits the language of the noncompete clause so that it is balanced. For a copyright textbook, I might ask for a limitation like this:

For a term of five years after publication of the work, the author agrees not to write a copyright textbook for law students that would compete with the work.

That language protects the publisher's legitimate business interest (which I share) in maximizing its income from the book, while still assuring that I am free to write other works about copyright law, such as journal articles or a copyright text for a different audience. Five years after the book is published and becomes hopelessly outdated given the pace of change in this area, I would be free to create a new book for the same audience with another publisher.

I would not attach too much meaning to the fact that those provisions are not originally drafted to fit a specific author's needs. That kind of individualized drafting would require publishers to have knowledge of information to which they have no access. Your publisher does not know what your next work will be. You may not even know it. From the perspective of a publisher, it makes sense to draft a broad, one-size-fits-all provision.

I have worked with many faculty authors who have succeeded in narrowing overly restrictive provisions in their book contracts with just an e-mail message or two. But those authors are exceptional in their care of their creative rights.

A recent survey of faculty members at the University of California found that 58 percent of them read the terms of their publication agreements and sign them as is. Only 5 percent request changes. The remaining 37 percent sign publication agreements without ever reading them.

Copyright law has changed in the past few decades to provide much greater protection for an author's creative rights. Those powerful rights attach as a default at the moment a creative work is fixed in any form. Protecting those rights from being tossed out with a broad noncompete clause will require the time it takes to send an e-mail message or make a telephone call.

Taking a few minutes to craft good contract language before your next book is published can add clarity to an area that often generates confusion, and can save you a lot of time later when you are about to publish your next project.

Deborah R. Gerhardt is the copyright and scholarly communications director at the University of North Carolina at Chapel Hill, where she also serves as the director of the Intellectual Property Initiative and an adjunct professor of law. Before entering academe, she practiced intellectual-property law.

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