Can I get out of an overly restrictive non-compete clause in a publishing contract?
A question came in from a fellow writer with a tale of woe: "I managed to goof up my contract with the publisher so good (being given a chance as an aspiring author and all) that I really don't see a way out of my situation right now.
"In a nutshell, I didn't negotiate my contract and ended with with non-compete clauses of all sorts which now prevent me to author a new revision of my book..."
He continues: "I tried to reason with the publisher but they nearly laughed at my face. According to them, they want to control when it's time for a new revision since it will compete with my old book. And yes, I shouldn't have a reason to complain because they claim their contracts are one of the least restrictive in the industry.
"I am thinking of approaching the National Writer's Union. Perhaps, a legal resolution as a last resourt. Please let me know if you could recommend someone that doesn't charge a fortune. Any suggestions to get me out of my contract?"
Well, I have to say that if you signed the contract, unless it's something that the courts would see as unacceptably onerous to you professionally, it's going to be very hard to change things. On the other hand, almost all of the non-compete clauses I've seen have wiggle room because of how they define "competitive". But I'm baffled why they wouldn't want you to revise your work to be more contemporary since it's in their best interests??
For example, when I wrote Wicked Cool Shell Scripts, we retained a non-compete clause in the publishing contract, but tightened it to be very, very specific. None of this "can't write about Unix" or "can't write about shell scripts", but something more in the vein of "can't write a book that would directly, specifically and materially compete with the existing title." And, all non-compete clauses always have the second part "without us having first right of refusal" so even then you should be able to proceed, you just have to give them first crack at the new work.
Perhaps your out is if you can seek a 'memo of clarification' that would detail how the non-compete is defined, something that talked about 'directly competitive titles in the following topic, presented in the following manner'? That is, if you wrote a tutorial introduction to, say, Movie Editing, you should seek clarification whether a reference work on movie editing would be considered competitive or not (I'd hope they'd say "not", which is considerably less restrictive).
If you can, please post the exact wording of the clause out of your publishing contract and perhaps we can find a hole together?
Obligatory note: I'm not a lawyer, this is not legal advice, and you need to use anything written here at your own risk. I'm pretty good at reading contracts and negotiations - and I've done it for others more than once - but this is a considerably more informal venue and I can only offer you free advice. Good luck!
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