The Authors Guild on the Option Clause

Excellent statement from The Author’s Guild analyzing the odious “option clause” in the book contract. Most book contracts are “asymmetrical” in favor of the publisher. I.e. an agreement whereby the publisher gets the right to exploit the work of the author for the term of the copyright, life plus 70 years. In exchange they give the author a very small advance (usually)  against rather small royalties. One of the most asymmetrical conditions is the option clause, which requires the author to submit the next book exclusively to the contracted publisher for a given period of time, but doesn’t require any additional responsibility on the publisher to accept it. Sometimes a very limited option clause is ok. But there are some truly horrible ones out there.  Here is the complete text.

A few authors are lucky enough to sign multi-book deals worth six or seven figures. But many more writers, without really thinking about it, tie themselves to unprofitable multi-book deals in the form of one-sided options or “next book” clauses—and they do it for free.

Option clauses in publishing agreements vary, but generally they give the publisher first dibs on the author’s next book. Some options are relatively benign, granting the publisher rights of first look or first negotiation (i.e., the right to see the next book first and negotiate for a limited period of time after reviewing it). Others are never fair, in our view, such as clauses that grant the publisher a right of last refusal (i.e., even if the publisher turns it down at first, it can come back and match any other publisher’s offer) or the ability to wait until after the first book is published, or the second book completed, to make up its mind. Clauses that do so unfairly impede an author’s ability to write and publish.

We get that publishers want their investments in authors to pay off. When a book does well, it may be a credit to the publisher’s marketing efforts, as well as the author’s. In cases where the publisher actively builds the author’s brand, it may be fair to give it the right to further recoup its investment on the next book. But the terms have to reasonable. We have seen too many option clauses that overreach, binding the hands of an unwitting author for longer than she can afford when it comes time to sell the next book.

Option clauses can wreak havoc on authors’ careers. First, and most obviously, they prevent an author from selling her book on the open market and getting the best deal possible. In cases where the first book sold particularly well, unless and until the publisher passes on the next book, an option certainly precludes an auction from developing. And what if the publisher failed to market the first book effectively, or the author was dissatisfied with the edit? The author is left without recourse.

An option can also hold up the author’s ability to get a new advance—a necessity for full-time authors. Particularly egregious clauses require the author to submit a completed manuscript (as opposed to a proposal) of the next book for the publisher’s consideration. To make things worse, they give the publisher way too long to decide whether to publish the manuscript. The author is not permitted to submit a proposal to other publishers until after delivering an entire new book to the original publisher, which is given ample time to review it and, of course, to reject it. This means that the author is writing the entire book without an advance—defeating the very purpose of an advance, which is to provide an author with money to write the book in the first place.

Even worse are options that give the publisher the right to the author’s next book-length work “on the same terms” as the first. That is, if the publisher elects to exercise the option, the author must sign a contract with the publisher with the same provisions and payment structure as the current contract. This completely eliminates the author’s right to negotiate before the next book’s subject matter, length, and market potential are known. No writer should ever agree to such terms.

For absolute intolerability, option clauses including “last refusal” rights take the cake. These, as discussed above, actually allow a publisher to match a second publisher’s offer, even if the publisher who holds the option declines the author’s work initially. We don’t think a publisher should receive even one bite of this apple. But several? That’s crazy. Once a publisher passes on a book, no author should be obligated to disclose any offers received from others to the original publisher.

One Authors Guild member whose option required submission of an entire manuscript spent ten years without any financial compensation while working on a research-intensive non-fiction manuscript (an early advance for the “next book” is almost never part of the deal). His contract prohibited him from approaching any other publisher until the entire manuscript was done—a decade later. It’s preposterous to ask authors to bear that kind of risk.

Fiction writers aren’t immune. A few years ago, a major publisher used a next-book option (together with a non-compete clause, like the ones we’ve called out here) as an excuse to pull the plug on a novel already scheduled for publication. With her agent’s knowledge and blessing, the author decided to self-publish a previously-written but unpublished short story collection in order to make ends meet before the next installment of the advance for the novel was due. When her publisher—which had already rejected the story collection—found out, the author received a termination letter demanding immediate repayment of the advance, claiming that “by ignoring these essential terms of the Agreement and not informing your editor of your intentions, you have not only breached the Agreement, but also demonstrated your unwillingness to work in good faith with us toward the successful publication of the Work.” The novel clearly didn’t compete with the self-published short story e-book. And earlier, when the author presented the publisher with an outline for her next novel, the publisher had insisted on waiting until after the current novel’s release to see how it was received and whether it was worth picking up the next one.

Or consider the romance novelist who took a break from fiction to write a non-fiction book. Her non-fiction contract required her to submit her next book—a romance novel—to that same publisher, despite the fact that the non-fiction publisher had absolutely no experience with romance novels. The upshot was that the author was required to delay submission of the novel to publishers who would actually know how to handle it.

Fair “next book” clauses do exist and may be appropriate where the publisher invests in marketing, but they must be strictly limited. The clause should grant only a right to negotiate with the author for a next book of similar subject matter for a limited period of time. If the author and publisher can’t reach an agreement in that time frame, it is crucial that the author be free to quickly seek another publisher. Additionally, a fair option agreement generally will:

• require that the publisher base its decision on a proposal or sample chapters of the next book (not on a completed manuscript);
• require the publisher to make a decision within a certain number of days (e.g., 30) of receiving the author’s proposal or sample chapter(s);
• allow the author to go elsewhere if no agreement is made within a limited number of days (e.g., 15) of the publisher’s offer;
• allow the author to submit a proposal or sample from the next book for the publisher’s review when it is ready (the author should never be forced to wait until some period after publication of the first book, which may be way too far out for an author living on book writing alone); and
• provide for new terms to be negotiated for the next book (the second deal should never be based on the terms in the contract for the first book).

If the publisher wants an option in any other circumstances, the publisher should pay an upfront option fee for it. We recognize this is not an industry practice—not yet, at any rate. But it should become one. A publisher should never have the right to prevent or delay an author from selling her next book unless it pays an additional amount to hold up that work for some period of time, as a film studio would when buying film option rights on a book.

Bottom line: option clauses are almost always in the sole interest of the publisher and not the author. In some cases, the option clause can hold the author’s writing career hostage to the publisher’s schedule for years. This amounts to an unacceptable restriction on an author’s freedom to write. If an author is agreeable to providing the publisher an option, it should be subject to the limits described above.

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Publisher Rejection Letters From Plato to Hitler

When I became a literary agent three years ago, I simply wasn’t ready for the flood of publisher rejection letters flowing into my office in response to my submissions. It felt a little like my social life in high school. I can only imagine the shame and humiliation that my clients must experience from these letters. Four years of work on a novel reduced to a single line, a formula really: “I just didn’t fall in love with it.” Or: “We all felt it didn’t quite have the right narrative arc.” I decided to engage in a mental exercise of employing   the standard rejection templates as they might have been  used for some of the great  (or notorious) classics of Western Civilization.

Plato’s Republic

Andy,

Thank you so much for submitting The Republic by Plato. Certainly this book has much to recommend it. It asks some  serious questions and it doesn’t get bogged down in “jargon” like some of the philosophy books we see coming over the transom. That said, I am going to have to pass on this book. I’m not sure that the author has anything really new to say about the themes he discusses. The Good, the True, the Beautiful,  and the Just have been written about ad nauseum since the time of the ancient Greeks. There is really no new way to slice and dice this material. And although Mr. Plato seems quite adept at dialogue, I can’t help but wonder how he would hold up in the face of tough questioning by the likes of Bill O’Reilly.

The Magic Mountain by Thomas Mann

Andy,

I don’t quite know what to make of this book. Six hundred pages of narrative about people in a tuberculosis sanitarium on top of a mountain, and for twenty years?  Really! I’m afraid that modern American readers need a little more action and excitement in their lives. They don’t want to come home and read about the over-ripe decadence of Central European culture in the early Twentieth Century. I certainly don’t mean to sound snarky, but in my humble opinion (and I have been  known to be wrong before), Herr Mann  is nothing but a gas bag.

 

Oedipus Rex by Sophocles

Andy,

Thank you for your submission of Mr. Sophocles’ drama, Oedipus Rex. Sophocles is an exceptional dramatist with many fine works to his credit  that have been both critical and commercial successes. And we feel privileged that you gave us the chance to consider this work. That said, I’m afraid we are not going to publish this book. Although I am a personal admirer of Mr. Sophocles, I feel that Oedipus is a minor work and, quite frankly, a little derivative. The  implicit theme, the idea that “from suffering comes wisdom,”  has become a little hackneyed and a little frayed at the edges, as it were. I think that after  seeing James Cameron’s Avatar, there really isn’t much left to say on this subject. But we would be delighted to look at anything newer and fresher that Mr. Sophocles might create in the future.

Ulysses by James Joyce

Andy,

I’m sorry. I just don’t get it.

 

 

Macbeth by William Shakespeare

Andy,

Thank you for sending us Macbeth by William Shakespeare. Mr. Shakespeare certainly brings a fresh voice to the modern theatre and has a commendable mastery of plot and character. That said, I am not going to make an offer on this book. I think that Mr. Shakespeare has a certain  inelegance of style and his language skills could use some refining. I also noticed a number of careless misspellings in this work. The extensive “scholarly” footnoting with its endless references to “folios” and “quartos” was annoying and distracting.

I feel compelled to say, and I hope neither you nor your client take offense at this, that some of his “speeches” are just plain pretentious and not suited to the more casual sensibilities of our upscale readers. For instance:  Macbeth says: “It is a tale told by an idiot, full of sound and fury, signifying nothing.” Don’t you think this could be stated more clearly and succinctly? How about: “Life is pretty confusing. Sometimes I just want to shake my head and cry.”  Furthermore, I could not help but note an obvious unattributed locution from William Faulkner. Your author should try to be more careful.

Tom Sawyer by Mark Twain

I am a big fan of Mr. Twain’s work. In fact, his novel, Huckleberry Finn, was one of the best books I read last season. So I approached your submission with considerable excitement. I’m sorry to say that I was not thrilled with Tom Sawyer. Compared to Mr. Twain’s other works, I felt that this was merely a bagatelle and perhaps a little (shall we say) jejune. Still I sent it around for some more reads and  I took it to the editorial meeting. The sales director pointed out that all of Twain’s novels since Huckleberry Finn have shown steadily declining Bookscan numbers. He felt, and the committee agreed, that it was unlikely that the chains would take a position on this book. But I encourage you to show us any new projects the author might develop in the future.

War and Peace by Leo Tolstoy

Andy,

Thank you for your submission of  Count Tolstoy’s War and Peace. I found it to be a very well researched and polished  novel. And I can certainly see how it would appeal to the  same readers who enjoy the works of Herman Wouk.  But I am afraid that I won’t be making an offer. As you know, our imprint is always looking for quality genre fiction. And certainly War and Peace falls squarely within the conventions of the historical novel. But, just between you and me, this manuscript just isn’t ready for prime time. For starters, it is a real door-stopper. 1500 pages plus change! I think the author needs to face the facts that he could do with some judicious freelance editing. Our readers lead busy lives and are looking for a more, shall I say, intimate reading experience. If the author could cut the plot by, say, 900 pages; if, for example, he could take out the sub-plot of the Napoleonic invasion of Russia, we would be happy to review this submission again.

Mein Kampf by Adolph Hitler

Andy,

I have to tell you that this one came pretty close. Personally, I loved this book. I took it to the editorial board. We almost had consensus. But the committee reluctantly decided to pass. There is much to admire in this book. We were impressed by the author’s passion, his strong sense of purpose, and his robust voice.. Some of us were moved to tears by the Youtube clips from the Nürnberg Parteitag rallys. Herr Hitler’s platform is most impressive, indeed. One of the editors said, only half jokingly, that it was too bad we couldn’t bottle Herr Hitler’s charisma and give it to some of our more pedestrian authors. And our marketing director was inspired by the book proposal that offered so many  innovative marketing strategies. The concept of   summarily executing any citizen of the Third Reich who didn’t purchase this book was  refreshing and indicates that your client is a very savvy marketer.

At the end of the day though, there was no agreement on how we could position this book in the marketplace. Some of us wanted to treat it as a kind of how-to book for people who were seeking to improve their public speaking and, at the same time, pick up some useful tips for world conquest. Others felt that the ideas were just a little too “weighty” for a trade house like ours. After some brain storming about possible merchandise spin-offs, we decided that we were the wrong home for this remarkable book.

We wish Herr Hitler the best of luck in his career as a writer and as a public figure and expect to see great things from him in the future.

DECONSTRUCTING PUBLISHER REJECTION LETTERS

In my line of work, I get a lot of rejection letters. I tell my authors that it is a little bit like my social life in high school. Rejection is painful to everyone.  Reading these letters  always feels like a stake in my heart. I can’t imagine how much it hurts the writers who have labored for two years on their life work only to have a capricious 2 line rejection.

 You read about these high profile deals in the newspaper: Sarah Palin (or Tina Fay), Dr. Phil, Stephen King. These deals are actually pretty simple affairs and mostly revolve around the concept of a lot of money changing hands. But the vast amount of publishing deals are something entirely different.

 Most of my projects are what is referred to in the trade as “midlist”.  The midlist books are the ones that aren’t lead titles. The midlist is most of the books that are getting published. The midlist appears to be what publishers are most shy about acquiring in bad economic times.

  Even though advances for the midlist are pretty modest (often less than $10,000),  publishers see these books as a risk. Like every other business in America, publishing is having a hard time. The lead titles seem to be holding pretty well, but the midlist is struggling. There are other factors involved in the decline of the midlist as well. Concentration of retail bookselling in the hands of chain stores and mass merchants, the cult of celebrity, a reading public that  has developed internet-inflicted ATD, irrational exuberance over all things media-driven.  All of this works against good books with smaller audiences.

  I try to send out a lot of submissions for any given project. As long as the title submitted seems appropriate to the mission of the publishing imprint and the taste of the particular editor, I like to give the publisher  a look-see.

 When you read about the big deals, the word “auction” usually comes up. But with most midlist books, you might find only one publisher who really falls in love with the book. – Or no publisher. So you can see why there are a lot of rejection letters in my inbox.

 My authors all want to see the rejection letters. We talk about them a lot. Authors seem to think that there is some hidden wisdom in the letters that can be uncovered through hermeneutical exercises.   I tell them that frequently there is very little to be learned. Sometimes these letters are simply polite ways of saying: “we aren’t interested”.

 I’m going to give you some examples of rejection letters I have received (I will protect the privacy of the author and the editor). And in true, post-modern fashion,  I will  try to explain the hidden meanings through exegesis of the text.

 Fiction submission: “Thanks for sending us _______. This is a beautiful and stirring look into the lives of people who are living in a time and place surrounded by tragedy. [The characters] are both very well-wrought and intriguing. That said, the pace was a bit too slow for me….. As you know, selling fiction is difficult these days, and I think a book as well-thought out as this one needs to move at a swift pace, in order to keep American readers interested. I’m sorry.”

 Analysis: Publishers are nothing, if not polite. And they always like to be as complimentary as possible. But when the phrase “that said” comes up, we know the ax is going to fall. In order to determine if a letter  is meaningful, one must look for something personal and unusual. Letters that begin with “This is beautiful and stirring”… [followed by] “that said” [followed by ] a rejection are usually of a garden variety. There is not much to be learned here except that fiction is difficult  these days and publishers really want fast moving stories. We already know that.

  Narrative Non-fiction submission: “Thank you for sending me the proposal for ______ She has had such incredibly fascinating experiences, and her perspective as a _______ in that volatile and dangerous location is captivating. While there is much to admire, in the end I didn’t fall in love with this as much as I had hoped. ….”

Analysis: “I didn’t fall in love with this” happens a lot in this business. There is always some truth to this. In art,  de gustibus non disputandum est (I’m sorry. There is no accounting for taste). Even though publishing has become a highly rational business focused on the bottom line, at the end of the day the decision to acquire a book is ultimately based on a highly subjective and emotional response. And that  is how it should be, and I suppose this is some cause for optimism.

Memoir: “I took a look at this early this morning. What a story. Her commitment and passion are beyond admirable. It’s also a piece of history incredibly important to our generation, little known to people in their twenties and even thirties. But I feel memoired-out….”

Analyis: “Memoired-out”. I’ll say! I go to writers conferences. A lot of people are writing personal memoirs. Publishers are very cynical about them. They call them “ME –moirs” or “misery memoirs”  or the like. I tell my clients that memoirs are ok if the writer is looking outside themselves. I ask them to think about who is the audience for the  book. That is what the publisher is going to ask me. Most people think that their life is interesting. And, in fact, everybody’s life is interesting. But one must ask who will spend $25 and several weeks reading about it?  (BTW, I found a publisher for this particular memoir.)

Humor: “I don’t find it as funny as you do, and I don’t see much of an audience for this.”

 Analysis: Well, what is certain is that this rejection letter isn’t  trying to be too polite. It is blunt but honest, even if there is little that the author can learn from this. What I learn is that humor is especially subjective. What I see as one of the funniest books ever written may leave another person cold. Before I submitted this, I looked at every humor deal that had been made in the last 2 years. There is a data base where one can do this. Virtually every humor title was from a successful web site. Successful web site usually means more than 100,000 hits a day. If it’s less than this, chances of getting a publisher diminish.

 Humor: “Sorry.  I just don’t get this one.  I’ll pass, but thanks for thinking of me.”

 Analysis: Same as above but even blunter and more honest.

 Current Events: “Andy, I’m passing.  It’s so funny and smart and relevant but also, and obviously you’ve already found people who disagree with me, it felt like a lead article for New York Times Sunday magazine.  That’s no mean feat in and of itself, but I just worry it won’t have a big enough book audience. ”

Analysis:  The message in this is that this is an article, not a book. That is a big cause for rejection these days. As big as: “I just didn’t fall in love with it”. I have started telling this to my authors. That they really need to understand this concept. Some concepts for books  are probably better expressed in a 5-10,000 word article than in a 50,000 word book.

 Dating Memoir: “Many thanks for sending me this funny and candid proposal–I did enjoy myself, and I admire [the author’s]  verve and headlong sense of humor. She does have a great platform…. (I also want to acknowledge my own subjectivity here, ….I am about to give birth for the first time–my focus is just in a very different place than the territory this book covers, and I’m afraid I am rather self-absorbed at the moment!)”

 Analysis: Now how can you feel bad about an editor as honest as this, even though it’s just another  rejection. When I read this, I wanted to give her a big hug and send her a teddy bear.  She’s having a baby! She isn’t interested in issues around finding the right man. Editors are like everyone else.  Sometimes they reject a book because they got up on the wrong side of the bed.

  History Book: “Andy: thanks for sending this to me.  She’s a great writer and it’s a terrific story but my fear is that this happened so long ago, I’m just not sure how you make 1989 of interest to people in 2010 or 2011, especially by a woman who’s not a household name, so I’m going to pass.”

Analysis: This rejection letter is extremely annoying. After all, the book is about a war and an important moment in history. The editor seems to be saying that she would be more amenable in an historical subject more current. But then, it isn’t history. And the current war in Iraq has been so over published, that there is simply no new way to slice it and dice it. But I was not able to get this book published. 20 other publishers said the same thing. They felt that there was not a sufficient audience for a subject  that took place 20 years ago. In this case, the message was loud, clear and unambiguous.

 Narrative Non-fiction.” I like the chapter and the idea of the book but to be honest, I’m not sure from the proposed chapters what makes this a book with a narrative arc of some kind rather than just a collection of essays.”

Analysis. The key concept here is “narrative arc”. This is a big reason for rejections. Alan Rinzler wrote about this on this blog several weeks ago. A good narrative non-fiction book must read like a novel. It needs a beginning a middle and an end. It needs an Act 1, Act 2, Act3. Just like a good play or a movie. That is “narrative arc”.

 Narrative Non-fiction. “Apologies for getting back to you so very late about this (I thought I had responded but can’t find the email).  I thought the writing was excellent and the subject intriguing, but ultimately I wasn’t convinced we’d reach a large audience with this project, so alas it’s not for me. ”

Analysis: There is the “A” word again: “audience”. Publishers keep asking me this and so I keep asking my clients. Who’s the audience? Who is going to read this? Authors really need to think pretty hard about this. And take some time to make a compelling case in the book proposal. Because if you can’t make a compelling case, chances are that there isn’t an audience.

 Non- Fiction Proposal. ” I didn’t receive it. We’ll check my spam filter for it, and we’ll let you know if we find it there.”

 Analysis: You would think that these big corporations have sophisticated logistics that make things work better, but clearly they don’t.

 Proposal: “Acquisitions are still on hold over here, so I’ll have to pass.”

 Analysis. This is pretty distressing. But publishing is suffering from the same economic problems as the rest of us. And there are some fine publishers who are having difficulties. [The publisher above closed its doors for the last time this year].

  Humor.”I’m sorry to be slow getting back to you about this. I found the illustrations and the story to be very clever and charming. But, it’s such a tough publishing climate right now and I worry that without authors who have a more visible platform, it would be a challenge for us to get the word out about this.”

 Analysis:  Platform, platform, platform. That is the word you keep hearing about from publishers. What is it? It means that the burden of promoting this book is going to fall on the author. And you better have fame, money or access for promoting your book, or the publisher won’t be interested. Sometimes, but not always, prestige will suffice for platform. As in having an endowed chair in a department at Harvard. Publishers love Harvard. I don’t know why. I have gotten books published by authors without platform. But not having one creates huge hurdles.

 Fiction: “Thank you for sending me ___________  [The characters] are engaging and likable, and this thoughtful examination of their relationship feels incredibly honest and revealing. While there is much to admire, in the end I didn’t fall in love with this as much as I had hoped. ”

Fiction (letter from the same editor as above):“Thank you for sending me ____________This is an incredibly heart wrenching, moving perspective on________, and her brutal honesty is truly brave. While there is much to admire, in the end I didn’t fall in love with this as much as I had hoped. I found it difficult to get entirely swept up by the characters, and without a stronger connection I’m afraid this didn’t capture my attention throughout.”

Fiction (letter from the same editor as above): “Thank you for sending me the proposal for_____________. She has had such incredibly fascinating experiences, and her perspective as a ____________in that volatile and dangerous location is captivating. While there is much to admire, in the end I didn’t fall in love with this as much as I had hoped. As compelling as her experiences are, I never quite got to the point where I was really driven to turn pages, and so this didn’t entirely capture my attention throughout.”

Analysis: The 3 rejection letters above were all sent to me at different times by the same editor. Obviously  there is some serious cutting and pasting going on here. I’m tempted to make some snarky comment. But really, these letters tell us a lot about the life of an acquisitions editor. They get twenty proposals a week. Fiction editors probably acquire less than 1% of the proposals they receive. So it is not reasonable to expect a huge amount of nuanced analysis in a rejection letter. There really isn’t much to learn from these letters, except that the book was not for them.

And here is my favorite letter of all time from an editor

” Yes, I just got out of the meeting this minute, and the book was approved. Yay!”

 That’s  what makes it all worthwhile.