Vanity, thy name is option clause

The author was ecstatic. Not only had she been offered a publishing contract, but they wanted her next two books as well! Oh glory! Whoo-hoo!

Slow down.

I made her a cup of my amazing fresh-brewed coffee with lemon zest, and I convinced her to sit by the fire at Booklab a minute and take a breath. Yes, it sounds flattering when a publisher includes mention of your future works in a book contract. But dear author, this is what is known as the dreaded Option Clause, and it always benefits the publisher, not you.

The clauses are generally written in tricky ways. You usually have to show your publisher your next work of the same genre (for example, your next work of nonfiction), and give them right-of-first-refusal. Doesn't that sound innocent and also flattering? It does, but it isn't. First of all, it gives them a chance to bid on the book with no competition, so they can "buy" you on the same terms as your first book, even though presumably you're worth more on book two if you are angling your career the right way. Second, it prevents you from shopping book two around when it is in the earlier stage of proposal and sample chapter, a stage at which many publishers may want to give you a deal. This option clause won't be satisfied if you show your current publisher that same amount of work -- you still owe them a look and a bid on the whole manuscript. The overall effect is one of squelching healthy competition.

There is an old gentleman's agreement in New York publishing (although it is rapidly falling by the wayside along with such niceties as job security) that says if authors are bound by option clauses to publishers even in a manner that they can technically wriggle out of, other publishers won't bid. The general thought was -- and sometimes still is -- that you should satisfy your obligation to the publisher by producing the books that the option clause stipulates before you are free to go elsewhere, and other publishers would expect the same, so they back off. Would this hold up in a court of law? Of course not, but publishers know that turnip-poor authors aren't usually going to go crying to the judge over such matters. They can't afford to.

There are two ways to handle an option clause if you don't have an agent. The best way is to get the publisher to strike it out altogether, and if you do, that's a complete victory. Then the publisher can bid just like anyone else for your next book. But most publishers won't do this, and unless you are valuable and they're nervous about losing you, I don't blame them... why would they? What you usually can get, however, is a time limit. I prefer sixty days, but you can negotiate and perhaps settle at ninety. Once you close the loop by giving the option clause an expiration date, you at least render it into a gentler thing, if not completely harmless.


The book image above comes from the University of Nebraska Press.

Why do university press publishers ask for copyright in their name?

NOTE added March 7, 2007: This item has been the subject of some controversy, which is good. Some university press publishers felt it was an attack, which is not so good. Although I didn't intend it as an attack, upon re-reading I can see their point. Instead of changing the post, however, I've decided to let it stand as a well-intentioned almost-polemic, and then offer the publishers equal time. Over the next weeks and months I hope to post feedback from respected university press publishers on why they do ask for copyright, what the benefits are to the author and the book, and where they feel the debate stands today. I'll also post feedback from trade press publishers on whether or not they ask for copyright (in my experience most do not, but there may be others who think differently). I will also post comments from the Author's Guild.

Here is the original post, from early December 2006:

Why? Why? This is a baffling habit, and it seems to be industry-wide. Whereas elite trade publishers almost always write the contract so that copyright is in the name of the author, university press publishers ask for -- or occasionally try to demand -- the copyright. Never let them. For one thing, it is your book. You wrote it, and you should be the ultimate owner of it. That's the moral aspect. But the practical considerations are also important. If the publisher has your copyright, and you want to contribute an article to a journal largely based on a chapter from your book -- especially if you want to use some of your same prose -- you'll have to ask the publisher pretty please to grant permission. Absurd! These are your words, and you should be able to re-use them as you wish.

The good news is that university press publishers are usually fine with you asking for the copyright in your name. So far in this job they've granted copyright to my authors 100% of the time, and not once has there been a discussion, let alone an argument. Of course, I've only been back at Georgetown in this capacity for a year (although I was in the English Department from 1997-2003). There is still time for a university press publisher to surprise me on something. But for now, just remember the watchphrase of this office: "Always keep your copyright."

The Authors Guild at Georgetown - November 8

What kinds of questions will you want to ask when the Authors Guild is here November 8? To get the most out of this busy, informative session, do consider submitting your contracts ahead of time for review. Here are just some of the pressing questions this office has dealt with since it opened in January:

SAMPLE SCENARIOS

1. The publisher said it "doesn't negotiate," so you signed a boilerplate contract seven years ago. Now your editor says you have to produce an updated version of your book, even though you've long since moved on to other projects, you don't have the time, and you don't need it for tenure. The editor threatens to produce the volume with or without your cooperation, and to put your name on it anyway because she claims the publisher has that right. Can she do this? Do you have options?

2. You signed a contract allowing your journal publisher to distribute your article in all forms throughout the world forever. The publisher also kept the right to revise your article "as necessary." Consequently, the article was edited by someone whose political opinions are the opposite of yours. Not only were your boldest assertions watered down to the point where you sound weak and ineffective, but the publisher plans to distribute this piece worldwide, including electronic archives. Do you have any recourse?

3. Although it now wants to be seen as a literary force in the world of the big-box bookstores, a prestigious university press publisher also claims it never pays advances, so you accept a contract with no money upfront. Then you find out one of your junior colleagues did get an advance. What next?

4. You have a choice between two important university presses whose reputations are functionally equivalent. They each came to you and offered you a pre-contract for your high profile project. What does this mean? Is either publisher obligated to publish your book? Can you go ahead and continue talking to both of them in good faith while you finish your book, or do you have to make a decision about which one to publish with now, before your book is finished?

5. Speaking of pre-contracts, what if you're up for tenure in the future and a university press offers you a pre-contract? Should you take it? What does that nagging term "pre" actually mean? Can you count on them to publish your book?

6. Prestigious university press A offers you a contract and asks you for a $1,200 subvention. Less prestigious but still excellent university press B offers you a contract and does not ask for a subvention. You have no funding through your department at the moment because you used it all for another worthy academic project. Which publisher do you choose and why?

These are just some of the many real-world situations that professors find themselves in with university presses. The good news is that you can always negotiate a university press contract. There is no such thing as a business entity anywhere that "does not negotiate," no matter what its representatives say. The better news is that most university press editors and publishers are in it for the love of the game anyway (they could be making more money doing something else, even in publishing!), so you'd be surprised how many times they are tacitly on your side even when they seem to be pushing the old party line. Learn more about your rights, your responsibilities, smart strategies and more on November 8.

Contribute Your Contracts

Please contribute copies of your literary contracts to our archive! The more actual contracts we can collect from various publishers, the better this office will be able to serve you by negotiating better and stronger deals over time.