Friday, July 27, 2018

Employment contract includes right of first refusal on any book

I just started a new job writing content for a non-profit. This organization sells books and has ties to a privately-owned publisher (both non-fiction and fiction imprints). Because the nature of this organization's work is so wrapped up in publishing and writing, as a content creator, my contract includes a "Right of First Refusal" clause for any books I write (though they seem pretty chill about it).

Questions:

1) How do I mention this when querying agents?

2) Does this tell agents: "Hey! He writes for a living and has connections with a publisher." Or does it tell them: "This dope signed a dumb contract that limits where I want to send the ms... pass!"


Holy Hosanna! Don't do this again!

You are not an indentured servant here. Work done on your own time should not belong to your employer.

I hope the clause contains a time limit. You show them the work, they have X days to buy it. And please god, I hope the phrase "mutually agreeable terms" appears, or they can buy it for zippo and there's not much you can do about it. It would be nice if it specified what kind of book is covered/not covered as well.

These kinds of clauses are never in the writer's best interest, and even if you employer insists on including one, you should negotiate some modifications.

All that said, you need to get clearance from your employer BEFORE you query.

If I invest five hours in reading your manuscript, another two in talking to you, and however many in writing up notes, I'm going to be HUGELY annoyed if you break the bad news that I can't sell this after I've invested the time.

Get the clearance in writing.

When you sign a trade publishing contract, the warranties clause expressly says you warrant that no one else has claim to this book. The last thing you want is your employer coming out of the woodwork claiming title. And yes, if you have a hit movie based on the book, this kind of stuff happens All The Time.

So, never do this again. Now that you have, get your clearances in order before you query.

In answer to your questions, (1) yes, but you also include that you have a clearance, and (2) the latter, sort of and definitely not the former.

Now, pull up a seat at the bar here cause I think we both need a medicinal beverage after thinking about this.

Any questions?

19 comments:

Carolynnwith2Ns said...

Any questions?
Yup.
If they have first refusal and accept your book, do you still need an agent?
AND
If they refuse your book, and you get an agent, are you free and clear to do as you may no matter what?

Theresa said...

Yikes!

Amy Johnson said...

Okay if I join you? I'll have a Shirley Temple, please. (I write MG--got my rep to consider.) On the plus side, Opie, congratulations on the new job! The new writing job. Way to go!

E.M. Goldsmith said...

I would have balked like a bucking horse if an employer tried to lay claim on work done on my own time. Ugh! I hope OP can get out of this.

Kregger said...

Are any first born children involved or pound of flesh?

Mister Furkles said...

As the economy expands, it is easier to find a new job than fight a court case. If you query after finding a new employer, who doesn't claim you a chattel slave, it will take over a year to get to publication. The old employer will forget all about you by then.

Also, a cousin, who is an IP attorney, told me that such a contract is not legally binding unless: (1) you are specifically paid to create the IP, (2) it is done as part of your assigned work, or (3) you use your employer's resources (which includes your paid time at work.)

But publishers won't to go to court unless it involves large amounts of money. So, emancipate yourself first.

CynthiaMc said...

This is why I follow this blog. Good to know.

RosannaM said...

On the one hand, you could be excited that you will have a close connection to a publisher, on the other hand, you could feel a little like your hands are tied...

Miles O'Neal said...

To be clear, the clearance must be in writing, signed by someone with legal authority for the company.

As for Mr. Furkles' comments, I don't know the current law on these things, but do know that a decade or so ago, the laws varied greatly between states. If you were an exempt employee (salaried), then in some states, a company *could* make such claims on your output. It's been a while since the average company could claim *anything* you invented, wrote, etc., but they could still claim things related to their business[1]. Most of the software companies I worked for made such claims on software, so I always added a list of exemptions for things I had developed to my employee contract. No one ever objected. I wouldn't expect this to be an issue with an hourly employee, although again, the law varies by state. Caveat: IANAL, NDIP1OTN

My current (high tech) employer has a very rational contract, so unless it's directly related to what they produce, it's not even an issue. They happily let me hawk my YA fantasy books and MG book on the internal for sale lists.

[1] Since your NP employer sells books and is tied to a publisher, this would fall into that category.

PAH said...

OP here!

There IS some good news. I haven't signed the non-compete with the clause in it just yet (so... THANKS JANET!). My instincts told me I'd want some language changed / clarified, so I have been working with them to fix it!

Needless to say, this response has been SUPER helpful.

For me, other than writing novels, it really is my dream job!

1) I'm glad I did NOT sign the contract yet, and 2) I think reading this blog over the last 2 years has prepared me enough to know not to sign a contract like this (even for a dream job).!

PAH

Writer of Wrongs said...

Back in my newspaper days, I was offered a job. I'd already heard this paper had a strong non-compete agreement, so I asked to see that before I accepted. They said, "There has to be some trust; you'll see it along with the rest of your intake paperwork."

RED FLAG

These days, I would say, "Okay, bye-bye." Back then, I accepted the job. When I read the non-compete, I was appalled. A lawyer friend reviewed it and said, "If you keep a journal while you're working for them, and decide years down the road to publish it, they would get the proceeds."

We tried to negotiate, but the newspaper wouldn't budge. So I walked. Shortest job in my history: three days. Now, several years later, I'm in the rewrite stage(s) of my first ms. And yes, it draws loosely on events from my newspaper days. But if it ever sells, they're not getting the money! :-)

Emilya Naymark said...

Great job, OP, for not signing! I always read all employer contracts and then stall. And stall. Once I stalled for years until my boss threatened me with firing if I didn't sign. I still crossed out everything I found objectionable before signing.

Whenever a company stipulates that I have to wait a year (or 5) before finding a job in a SIMILAR field, I refuse to sign. It's amazing how often this happens. Why employees don't object more often is beyond me.

I wonder what would happen if everyone refused to sign those contracts?

Sam Mills said...

Wowww I've heard of this in other industries, but didn't think about the possible conflicts working within the book industry.

Example: in my own previous line of work (local historical archives) I had to sign papers saying that if I collected archival materials in the same subject matter as my library I had to give the library the opportunity to look at them first. First right of refusal for collections, basically. Which made sense for a collecting institution, because I was a contact person for folks wanting to donate their belongings, and it would have been a huge ethical breach to intercept them for myself (whether to privately collect or sell for profit).

But for creative works? Which you solely produce, on your own time, unrelated to the resources of the place you're working for? Uh uh, no way.

Tammy Pigott said...

Oh wow! My heart dropped until I read the comments and discovered OP hadn’t signed yet. Phew!
I’m grateful for Janet’s blog because of situations just like this. After reading for a while, I get a sense of what she’s going to say before I get to her advice. Like my own little guardian guiding the process from afar!

ElisabethM said...

I work for a Big Five, and they also, in theory, have this policy. I've had some fun trying to get more details, but everything they provide is vague. (I also can't actually find mention of it in my contract. I never would have signed my contract had it been clearly stated in there.) The general consensus among my coworkers is to get an agent when the time comes and ask their advice. I realize you're saying the opposite here, Janet, but have you encountered this at all with the Big 5? Should I keep pushing alone to get more information from my vague HR reps, or should I get my own shark on my side?
I don't want to draw too much attention to myself if an agent would be able help/an agent would be better at arguing out of this super vague policy. It is most definitely not stated in the company policies as clearly as it is in the OPs. It took me several years of working here before it was mentioned to me by HR in passing, and then it took another few weeks of myself and two coworkers going through the company policy guide before we found the wording they may be using to enforce this.
Thank you in advance for any advice!

Craig F said...

PAH: I am glad that I don't have to rain on your parade too. Legal precedence is on on the side of writers who write something while employed in a similar business. You see it often on college campuses, many of the things put out by college presses are taken from their writers this way.

See if you can get that clause removed. If they won't budge you are going to have to weigh the situation carefully. If you get published and they can prove any of it was written while their employee, they have the right to relieve you of it and all of the money.

Have a good weekend, folks.

Elissa M said...

It is times like these that I'm infinitely delighted to be self-employed. (It makes up for the bill-paying times when I'm not so pleased with my employer.)

So glad to read the OP hasn't signed the contract yet.

AJ Blythe said...

Good work, OP. Trust your gut and Janet. I hope you're able to work something out with your employer that you're happy to sign.

Morgan Hazelwood said...

Good luck, OP, in getting that contract turned into something more palatable.