A New Type of Rights Grab – Reinterpreting No-Compete Clauses To Include Backlist

[Originally modified from a G+ post]

publishing.pngThis, my friends, is crap. This article suggests that Penguin (at least) interprets “next-work”, “no-compete” and “option” portions of a contract to cover all types of an author’s output, and I really, really, really hope that it’s exaggerating things.

I’ve dealt too much with corporations to be that hopeful, though.

The short form of the story as presented in the article1: Author was under contract to write a novel. While doing so, she offered some of her rights-reverted backlist up as digital downloads. Backlist that the publisher had turned down previously. The publisher then insisted that she remove the eBook in question. They also demanded she not put up anything else from her backlist until the hardcover and paperback version of her novel were printed by them. (It’d be interesting to see if her contract guaranteed both a hard and softcover release…)

Their reasoning? The backlist offering now would “compete” with a future release a year or more in the future. (Feel free to laugh in derision here.)

This is framed as a digital publishing issue, but it’s not. This is a publisher problem, not a digital publishing problem. The argument used here sets a precedent. It implies that Penguin thinks that if you’re under one of their contracts, you’re not allowed to even sell a short story to anybody else… even if the publisher has turned down the short story or collection in the past.

It would be a reasonable argument if we were talking about an author contracting to write for two or more houses at the same time. But we are talking about backlist offerings, not original, new works. That’s what makes this argument so heinous. The exact same argument could be used against an author selling a backlist story to an audio market on their own.

You might have heard some of the horror stories about offered contracts from the Big 6 (and other) publishers, where they’ve essentially tried to grab all rights whenever possible. A lot of us have, because other authors have pointed out exactly how heinous the right grabs are. This is a new kind of rights grab, and it’s crap.

I understand that lots of folks who work at Penguin are decent human beings, who are probably just as appalled at this. They might be editors, fellow writers, and the like. The problem here is not those decent human beings, but a corporate mentality that values maximal profits over all. 2 Media conglomerates own most of the publishing industry in this country (and worldwide) – which means those folks who are actually working with content and creative types are frequently those whose concern is not authors (or editors, or artists, or…), but profits and shareholders.

This is disturbing not just because of what Ms. Davenport has had to deal with, but also because it demonstrates (or at least strongly, strongly suggests) that the suits in the big companies treat authors – not content, but authors – as merely a commodity, nothing more.

I hope this is me tilting at straw men and not windmills. I really, really do.

1 Yeah, I’m making a big assumption that the article is legit and states the facts of the matter accurately. Honestly, I hope I’m wrong. Her version of the story is here.
2 And I do mean maximal. I have no grudge over making money – but there’s a difference between making money and min/maxing your profit margin.

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