A friend called me up, all excited about having received a book contract. “And it even has an option clause,” she told me breathlessly.
She was astounded when I told her to get rid of it if possible, or at least get it watered down. “But they want my next book!”
“No,” I told her, “they want to tie up your next book.”
That’s what most option clauses do—they tie your next book to them, often without giving you anything for that privilege. And they know it.
That clause is one of the first things I try to get a publisher to drop whenever I negotiate a book contract. Reputable publishers almost always will drop or modify the option clause. Vanity presses are notorious for tying up your next book. And many smaller or start-up publishers that don’t want to pay for legal services—the kind who “borrow” the contract of another publisher—may refuse to change a word because they’re not totally certain of what it means.
Think carefully before you sign with a publisher like that; if they are amateurs where the contract is concerned, they may well also be amateurs in other aspects of bringing out your book.
The Option Clause
An option clause should not be confused with a multi-book deal. You want that—if you can get it. A multi-book deal is one where the publisher is willing to purchase not only your current book, but also one or more other books from you, books which may be as yet unwritten. In a multi-book deal, the publisher will offer you money up front—in the form of the on-signing portion of the advance—for each of the books, along with a schedule of due dates and payments to be made when each book is accepted. An option is not the same thing.
Typical option language may read like this:
The Author agrees to give the Publisher a 30-day option on his next book-length work on the same terms as this agreement, which option period shall begin on the day the completed manuscript for such work is received by the publisher or thirty days after the publication of the book covered by this agreement, whichever shall be later.
Do you see a problem here? They want the completed manuscript for your next book, not a proposal, and if your first book hasn’t come out yet, they’ll have thirty days after they finally publish it before they have to commit to the second one.
Think about it: You cannot submit your next book anywhere else because they want to see it first—the complete manuscript—and then they can tie it up for a month, or whatever time is specified in your contract. How is that good for you—especially if they didn’t do a very good job of editing or promoting the first book you wrote for them?
Sometimes the option clause will say “on terms to be arranged” instead of “on the same terms as this agreement.” Unless you got a spectacular offer for your first book, this is usually much better than tying you to the same terms. But if that is the case, the clause will often contain language like this:
If the parties are unable to agree upon such terms and the Author has received a bona fide offer from another publisher to publish such work, the Publisher shall have the right to publish such work upon terms no less favorable to the Author. Publisher must exercise this right within 30 days from the receipt by Publisher of notice by Author of said offer.
That means that if you don’t agree to the terms they’ve offered, you can indeed go to another publisher—but good luck getting another publishing house to make an offer if that offer can be trumped.
Many publishers will strike the option clause upon request. If they don’t want to do that, you can often modify it so that you can submit a “partial and outline” (in the case of fiction) or a proposal (in the case of nonfiction), and the publisher will have to accept or reject the book at that very early stage.
The Restrictive Option
Another variation that you can usually get your publisher to accept is a restrictive option—not for your “next book-length work,” but for your next work of fiction, or your next novel in this series, or in this genre, or your next non-fiction book on this subject. This frees you up to write in other genres or on other subjects.
Of course, if your relationship with your publisher is good—and if they publish the other kinds of books you are writing—you’ll probably want to submit your next book to them before you give it to anyone else. But you don’t need an option clause to do that. Just mention to your editor that you’re writing another book, and ask if he or she would be interested in it. You might get an offer even before you put anything in writing—or a request for a written proposal that your editor can take to the editorial board.
And since you’re not committed to this publisher, you might be able to get better terms for your next book from them—or from another publisher—if you’re not tied to them by an option clause.
The Non-Compete Provision
You should be aware, however, that just as an option clause should not be confused with a multi-book deal, it also shouldn’t be confused with a “non-compete” provision in your contract. This kind of clause restricts your ability to sell works on this same subject which might compete with the book covered by your contract.
This is the kind of clause that you should really have a publishing lawyer or an experienced agent look at, to be sure it won’t keep you from collaborating on a textbook that might be on the same subject as your non-fiction trade book, but—being for an academic audience—won’t really compete with it. Don’t assume that because you’re a writer you will understand the meaning of the non-compete clause in your contract. Words often have different implications when they are used in a legal context.
Most publishers will not strike their non-compete clause, although they may be willing to modify it. It can be restricted to book-length works, so that you can write articles or present academic papers on the subject. Again, it can be very useful to have expert help if you’re going to modify this (or any other) clause in your contract.
But whatever you do, don’t be flattered by an option clause. It does not mean that you have a multi-book deal, and it seldom benefits the author, only the publisher.
About the author:
Ellen M. Kozak is a copyright, publishing and media attorney who is also an author in her own right. Her books include three editions of Every Writer’s Guide to Copyright and Publishing Law and the prize-winning From Pen to Print: The Secrets of Getting Published Successfully (both from Henry Holt/MacMillan). She can be reached at [email protected]
Also by Ellen M. Kozak:
1. Protecting Your Story Ideas: Just Whom Can You Trust? (article)
