Right of First Refusal

Back to contracts and some serious stuff: the right to first refusal.

This keeps coming up, so even though I’ve discussed it here and here, I’m going to talk about it again.

What's fair?

I’m sure that there will be both publishers (who feel they have the right to all of their authors’ future stuff) and authors (who feel they should be able to shop each new piece to the highest bidder) will disagree with me. But in MY opinion, fairness of first refusal falls into three categories: number of future works, category of future works, and length of enforcement.

Number of future works
Fair: a specified number of future works; as in ONE, perhaps two. The exception to this is if you are selling a series. In that case, the number of books in the series—but make sure it spells out that it only applies to the books in that series. Other books are up for grabs.

NOT Fair: More than two; more than one series.

Category of Future Works
Fair: The next novel in the same genre.

NOT Fair: Every genre that you might consider writing in, including non-fiction.

Length of Enforcement
Two to three years (because sometimes it takes an author that long to write their next novel.)

NOT Fair: More than three years.

All three of these categories need to be addressed and balanced in your contract. If they aren't, ask for clarification.

Now, I know that many authors want to get rid of this clause entirely. I understand—really, I do. But from a publisher’s perspective, let’s say I have two authors and, all other things being equal, one of them is looking at me with “long-term relationship” burning in their eyes, while the other one wants to “keep their options open.”

If it was your $10—$15 grand (or more) going into the project, which one would you ask to the prom?


Anonymous said...

I have a right of first refusal in my contract. When I asked the owner of the LDS publishing company if he would consider removing it, he swore, pointed his finger at me and said, "I'll never let you go!" Welcome to the nasty real-world of LDS publishing. If you want to see a copy of my contract, post a reply here and I will email you a digital copy.

Anonymous said...

SECTION 2. Right of First Refusal Granted on Other Manuscripts or Works of Authorship.
Author grants a right of first refusal to Publisher to accept for publication, upon the same terms and conditions as set forth in this Agreement: (a) any unpublished manuscript or work of authorship whether presently existing or created hereafter; (b) any manuscript or work of authorship which has been or becomes subject to a publishing or license agreement with a third party if and when Author becomes free to contract for further licensure or publication; and (c) any manuscript or work of authorship submitted to Publisher which Publisher has rejected. Once Author has received a bona fide acceptable offer to publish, license or assign, or proposes to publish, license or assign, a given manuscript or work of authorship, Author shall in writing notify Publisher of the terms and conditions of the offer or proposal, identify the offeror or offeree, as applicable, and submit a copy of the manuscript or work of authorship to Publisher. Whereupon Publisher shall have one hundred-twenty (120) days in which to exercise its right.
Once Publisher has failed to exercise a right of first refusal as to a given work, Author shall have the right to accept the subject offer or proceed with the subject proposal as submitted for one (I) year without further regard for this Section. If no agreement shall have been entered into within said one-year period, Publisher's right of first refusal shall automatically reinstate. Publisher's right of first refusal as provided in this Section shall expire twenty-one (21) years from the date hereof.