Saturday, January 24, 2009

On the Importance of Reading Legal Documents

With magazine sales, there's the original idea and then there's spawn, the tweaked idea that finds a niche in other magazine markets. Can you do the same thing with children's books? I have a non-fiction manuscript with an educational publisher, but I have also written a separate fictional story using the information I gleaned from writing the non-fiction piece. Is it all right to shop it around too? I feel like I'm double-dipping...
When you say "I feel like I'm double-dipping", do you mean:
"I read my contract and am concerned that the non-compete clause would make this course of action legally precarious and could cost me thousands of dollars when both publishers demand I return their advances"?

Or do you mean:
"I've made the educational publisher aware of the fictional manuscript I've written on the topic and of my intention of trying to sell it elsewhere, and they've given me their blessing (in writing). And when I submit it elsewhere, I'm making very clear to other publishers that I wrote a nonfiction book on the same subject for an educational publisher and am including all pertinent details about that book (isbn, price, pub date, publisher)"?


Word said...

Shows you how much I know...

I would have thought there would be absolutely nothing in the world wrong with that.

I mean nonfiction is completely different from fiction. And what's to stop someone else from reading this authors nonfiction piece and being inspired to write a fiction piece?

I don't see how these two stories would be "competing" against each other. Two completely different markets.

EA - can you help me understand the "why" behind the concern?


Editorial Anonymous said...

It's quite possible that the two works won't be in competition with each other.

But that's not for you to determine. It's for your publisher(s).

Janet Reid said...

Publishing contracts have a very specific section that says the author agrees to not publish anything that will compete, or adversely affect the value of the book covered in this contract.

The clause can be negotiated to more clearly define "compete" but no publisher will remove that clause.

It doesn't say "I won't publish any other non-fiction on this subject"; it covers ANY book you write.

You really don't want to find out how serious the publisher is about this the hard way.

Merry Monteleone said...

I didn't know anything much about this topic either! So what happens in the event you have a series that's published by one house but they decline to publish your next book in the series? Are you allowed to shop that book elsewhere or do you have to get a release of somesort on using those characters and world again?

I'm assuming with the non-fiction author here, they'd be using those publishing credits when approaching agents and editors on the novel, especially since they're related topics. But I hadn't thought of the non-fiction publisher not wanting fiction out on the same subject.

Informative. Thanks.

Anonymous said...

I don't think the answer is so clear-cut. The original question says that the writer's fictional story uses information gleaned from writing the NF piece. If it's identical information and subject matter (both books are about Benjamin Franklin, for example), then it is a no-no. But let's say the NF book is about a broad topic, such as the Civil War. Even if the fiction book uses historical details gleaned from writing the NF book, it isn't necessarily a problem. I wrote a NF book and in the course of it, discovered many interesting stories that exceeded the scope of my NF book. Did I glean them from writing the NF book? Yes. But I don't think my publisher could say that I can't base a fictional story on those historical facts that never went into my NF book. Doing so would be overly restrictive.

Editorial Anonymous said...

Agreed. Which is why I say it's quite possible that the two works won't be in competition with each other.

But if they're on the same topic, then the author needs to check in with his legal partner, the publisher, to be sure they don't feel publishing the new manuscript would undercut sales of the old manuscript.

Publishers know more about what's competitive and what isn't than authors, and in my experience if they really don't think it's directly competitive, they really won't care if you publish something else.

Jo Treggiari said...

Dear EA,
Can you address Merry's comment on the non-compete clause when it comes to a publisher passing on the sequel in a series? Thanks!

Anonymous said...

I am so glad someone asked this question! I have just begun a book (for a trade sub) with information I gathered for a published non-fiction reader I wrote for an educational publisher. I had a niggling sense that I needed to ask this question.

They'll be quite different, of course, and can't imagine they'd compete if this one is accepted, but very happy to know what I have to do to make sure. So thanks!

Editorial Anonymous said...

Series can be tricky. If it's a fictional series with recurring characters, then your original publisher may be reluctant to allow you to go somewhere else with those characters (and it may be in your contract that you can't).

Still, if the publisher just doesn't see the series working any more and wants to stop publishing it, then they be ok with you taking it to another publisher. What they certainly won't be ok with is if they want to keep publishing the series, but just don't like the sequel you've written. (If you're in that position, chances are the publisher is right. At that point they have a successful franchise and will be able (and willing!) to sell almost anything that won't completely alienate its readers... so if they're saying "no" to a draft, it's because that draft *really* worries them.)

But perhaps you're talking about a series that is more thematic than character driven... in that case, you may indeed be able to agree with your original publisher that you can take it elsewhere.

The important thing is to check, because whether or not *you* feel there's any competition, you don't want to do something that makes your original publisher feel that legal action is necessary. Legal action is a bad, bad situation.

Jolie said...

Janet said: "Publishing contracts have a very specific section that says the author agrees to not publish anything that will compete, or adversely affect the value of the book covered in this contract."

You can't publishing anything that will "adversely affect the value" of the book in question? Well, no author wants to decrease the value of his/her own book, but I hope contracts use some specific language on this point.

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